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The COVID Calm and BOP Staff Vax Noncompliance – Update for November 24, 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 A COVID LULL?

deadcovid210914The BOP’s official inmate COVID numbers continued to fall last week, ending Friday at 95 ill inmates, a 34% decrease from the week before. Ominously, however, staff cases increased by 4% to 263. COVID remains in 92 facilities, down only two from a week before.

But in the last few days, things have turned around (and not in a good way). As of last night, 107 inmates were ill, 258 staff were sick, and COVID was present in 100 facilities (82% of all BOP prisons).

The BOP reported one additional inmate death last week, but it was from last July (and apparently escaped the Bureau’s notice). Ruben Castillo, who had had COVID before he arrived at the BOP, died of what the Bureau said were “post-COVID cardiac complications.” Yet the courts and government continue to argue that inmates who have had COVID don’t face any continuing risks.

As of last Friday, 70.2% of inmates were vaccinated. But with the November 22 deadline for BOP staff vaccinations now having passed, only 65.7% have gotten the shot, according to BOP statistics, up just 1.3 points from last week. This compares to a systemwide vax rate of 90% for federal workers.

So those noncompliant BOP staffers will be fired now, right?

noodle211124Well, that was the story once. But now, the punishment has gone from 40 lashes with a cat-o’nine-tails to 30 lashes with a soggy spaghetti noodle. NBC reports that “for those who haven’t met the requirement or requested a medical or religious exemption, the federal government will continue an “education and counseling process, followed by additional enforcement steps over time if needed’,” quoting a White House official.

White House press secretary Jen Psaki said the administration doesn’t “anticipate facing any governmental operational disruptions due to [the vaccine] requirement and in fact, the requirement will avoid disruptions, in our view, in our labor force because vaccinations help avoid COVID.”

The U.S. reported a seven-day average of nearly 95,000 new COVID infections last Thursday, up 31% over the past two weeks. “I’ve been predicting a pretty bad winter wave again, and it looks like it’s starting to happen,” Peter Hotez, the dean of the National School of Tropical Medicine at Baylor College of Medicine, said last week. “There’s just too many unvaccinated and too many partially vaccinated [people].”

COVIDvaccine201221That “too many” number apparently includes inmates, too. Although a much larger percentage of federal inmates have been jabbed than staff,  a former prisoner-turned-writer for Biz News last week argued that opposition by prison staffs to “vaccine mandates highlights an illogical situation that has developed with little discussion: To date, neither the federal government nor any state or municipality has officially mandated the jab for their incarcerated populations. That doesn’t make sense: Prisoners, who are at higher risk for infection and death than corrections officers, aren’t required to get vaccinated while corrections officers, who are at lower risk, are being told they must get vaccinated.”

Expect more of those arguments. In New York City, where the mayor has ordered all city corrections staff to be vaccinated, union chief Benny Boscio complained last week that “it is extremely hypocritical to mandate our officers be vaccinated, while there is no mandate for the inmates in our custody…”

Except where the mandate neither has teeth nor much effect.

BOP, Inmate Death at FCI Stafford (November 17, 2021)

CNBC, Covid cases rise yet again in U.S. ahead of Thanksgiving holiday (November 19, 2021)

The Hill, Experts predict an alarming surge of US COVID-19 cases this winter (November 18, 2021)

NBC News, Administration expects 95% compliance with federal worker vaccine mandate (November 23, 2021)

Washington Post, Federal workers can be fired for refusing vaccination, but must show up to work until their cases are determined, new guidance says (September 17, 2021)

Stat News, Vaccine mandates should cover the incarcerated, too, not just prison guards and workers (November 18, 2021)

Corrections1, NYC correction officers refusing to get COVID shots despite looming mandate (November 17, 2021)

– Thomas L. Root

Durbin to Carvajal: ‘Drop Dead’ – Update for November 18, 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, ALREADY A ‘HOTBED OF ABUSE’, DITHERS WHILE INMATES SUFFER, INSPECTOR GENERAL SAYS

Turkeys may not be the only creatures with heads on the chopping block.

dropdead211118US Senate Majority Whip Dick Durbin (D-Illinois), chairman of the Senate Judiciary Committee, last Tuesday publicly demanded that Attorney General Merrick Garland fire Federal Bureau of Prisons Director Michael Carvajal, who was appointed during the Trump Administration.

Durbin’s call came after the Associated Press reported that since the beginning of 2019, over 100 federal prison workers have been arrested, convicted or sentenced for crimes, including the warden of FCI Dublin – a women’s prison in central California – indicted for sexual abuse, an associate warden at MDC Brooklyn charged with killing her husband last August, guards taking cash to smuggle drugs and weapons, and supervisors stealing property such as tires and tractors.

The Associated Press said its investigation revealed that the BOP “is a hotbed of abuse, graft and corruption, and has turned a blind eye to employees accused of misconduct. In some cases, the agency has failed to suspend officers who themselves had been arrested for crimes.” While the BOP workforce amounts to one-third of Dept of Justice personnel, its employees account for two-thirds of the criminal cases against DOJ workers in recent years. Of 41 DOJ employee arrests this year, 28 were of BOP employees or contractors.

The AP report was too much for Durbin, who said,

Director Carvajal… has overseen a series of mounting crises, including failing to protect BOP staff and inmates from the COVID-19 pandemic,failing to address chronic understaffing, failing to implement the landmark First Step Act, and more. It is past time for Attorney General Garland to replace Director Carvajal with a reform-minded Director who is not a product of the BOP bureaucracy.

choppingblock211118On Wednesday, the DOJ Inspector General put an exclamation point on Durbin’s well-justified rant. An IG report found that three years after passage of the First Step Act, the BOP has yet to implement one of the linchpins of the legislation, to reduce recidivism by giving prisoners incentives to successfully certain educational programs and productive activities. The primary holdup? BOP management and union staff have been unable to come up with ground rules for meetings to discuss how the educational and incentives programs should be implemented.

Remember how the 1968 Paris Peace Talks were stalled for months over whether the table over which “official conversations” would be held should be round or rectangular? Yeah, this has been something like that. BOP’s national union won’t conduct formal policy negotiations on Zoom, but rather demanded in-person negotiations. BOP management refused. The disagreement has resulted in a lack of formal policy negotiations for a period of 20 months, which has stalled the development of more than 30 BOP policies, about half of which were created or revised because of First Step.

The First Step Act requires the BOP to provide Evidence-Based Recidivism Reduction (EBRR) programs and productive activities to all inmates in its custody no later than January 15, 2022. The BOP has taken the position that this means that no credits need be awarded until then. No one believes that. In litigation, even the United States Attorney’s Offices defending the BOP have abandoned that tortured interpretation of the Act. The IG’s report said:

In August 2021, the BOP told us that the [First Step Act] contemplates a phased-in approach to time credit implementation and requires that all inmates be assigned to programming based on their assessments no later than January 15, 2022. As a result, the BOP stated that “implementation of time credits is fully permissible as a phased approach.” While we agree that the FSA affords the BOP a 2-year phase-in period to provide all inmates with EBRR programs and productive activities, we also note that the phase-in statute makes no reference to delaying the use of incentives and rewards, including time credits. Instead, the statute states that by January 15, 2020, the BOP “may offer to prisoners who successfully participate in such programs and activities [with] incentives and rewards.”

As a result of the BOP’s failure to talk to its union, as many as 60,000 inmates have not properly received earned-time credits for successful completion of First Step Act’s recidivism programs, the Department of Justice inspector general found. “We are concerned that the delay in applying earned time credits may negatively affect inmates who have earned a reduction in their sentence or an earlier placement in the community,” the report stated.

unsupervised211118Inmates around the country have filed petitions for habeas corpus against the BOP, demanding credit, with mixed results. Even now, the BOP stands firm. The courts are wrong. The US Attorneys are wrong. And, the latest, the Inspector General is wrong:

BOP disagrees with OIG’s characterization of the agency’s delayed implementation of FSA requirements… Although the COVID- 19 pandemic has created unprecedented challenges for the federal government, BOP has taken significant steps in implementing the FSA’s requirements, consistent with the FSA’s phased approach, and has complied with all mandatory statutory guidelines to-date.

Happy Thanksgiving, Director Carvajal. Use some of the long weekend to dust off your resume.

Press release, Durbin Calls On AG Garland To Dismiss BOP Director Carvajal (November 16)

Associated Press, Workers at federal prisons are committing some of the crimes (November 14, 2021)

Associated Press, Durbin calls for Garland to remove federal prisons director (November 17, 2021)

Forbes, Office of Inspector General Critical of Federal Prison Implementation of First Step Act (November 17, 2021)

ABC, DOJ finds Bureau of Prisons failed to apply earned time credits to 60,000 inmates (November 17, 2021)

Dept of Justice, Office of Inspector General, Management Advisory Memorandum 22-007 (November 16, 2021)

– Thomas L. Root

Smile for the Camera(s) – Update for October 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.

SENATE PASSES BOP PRISON CAMERA, RADIO REFORM

The Senate last week passed legislation to increase the number of cameras in federal prisons.

The bill, The Prison Camera Reform Act of 2021, S.2899, requires the Director of the Bureau of Prisons – currently Michael Carvajal – to address deficiencies and upgrade security cameras and radio systems to ensure the health and safety of employees and inmates. The bill will require the Director to report to Congress within 90 days on deficiencies and a plan to upgrade cameras, two-way radios, and public address systems. If the bill passes the House – likely, given the Senate vote was unanimous – upgrades would be required within three years with annual progress reports to Congress.

jailbreak211025In a 2016 report, the Office of the Inspector General for the Dept. of Justice determined that “deficiencies within the BOP’s security camera system have affected the OIG’s ability to secure prosecutions of staff and inmates in BOP contraband introduction cases, and these same problems adversely impact the availability of critical evidence to support administrative or disciplinary action against staff an inmates.”

Last summer, the Associated Press reported that over a year and a half, 29 prisoners had escaped from minimum-security BOP facilities across the U.S. — and nearly half have not been caught. At some institutions, the Post said, doors “are left unlocked, security cameras are broken and officials sometimes don’t notice an inmate is missing for hours.”

Forbes, New Bill Aims To Upgrade Camera Systems In Federal Prison For More Accountability (October 21, 2021)

S.2899 – Prison Camera Reform Act of 2021

AP, Prison break: 29 inmates escape federal lockups in 18 months — including in Colorado (June 11, 2021)

– Thomas L. Root

BOP Staff Gear Up to Fight Vaccine – Update for October 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.

BOP MAY BE ON BACK SIDE OF COVID DELTA BREAKOUT, BUT FIREWORKS ARE COMING ANYWAY…

taketheshot211021President Joe Biden’s mandate that all federal employees get vaccinated became effective October 8 (with a November 22 deadline), but you couldn’t tell it from the numbers. Last week, a total of 152 additional BOP employee got the shot, less than a half percent of the workforce. As of last Friday, 67.4% of inmates had been vaxxed, but only 55.6% of BOP workers had received the shot.

The Federal Labor Relations Authority last week denied a temporary restraining order to the union that represents Federal Bureau of Prisons employees to keep the Biden Administration’s vaccine mandate from taking effect.

The union filed an unfair labor practice charge with the FLRA regarding the vaccine mandate and requested a temporary restraining order against BOP to prevent implementation of the executive order until the parties negotiate it. Richard Heldreth, mid-Atlantic region vice president for the Council of Prison Locals, told Government Executive magazine that the unfair labor practice charge was not based on “undermining the executive order…but the council is against forced mandates. The union is just “trying to force the agency to bargain,” Heldreth said.

picket211021Andy Kline, president of AFL-CIO Local 148, whose members work at Allenwood and Lewisburg, last week accused the Biden administration of failing to bargain with unions over the mandate. “This administration is not union-friendly at all — something they campaigned on,” Kline said. “They came up with a deadline: Whether you have one year in or 30 years in, you’re going to have this vaccination by November or [they are] going to fire you for Christmas… Allowing the union to bargain would have allowed options for staff to get tested instead of vaccinated, allow them the only FDA-approved vaccine and many more possibilities.”

Kline’s union has been picketing along roads leading to Lewisburg and Allenwood. The picketing will expand to a nationwide movement on October 29. (Parenthetically, I had an inmate tell me yesterday that he’d heard a rumor that the entire system would be locked down in October 29 because everyone would be fired for not having the vaccine. I explained that the deadline is November 22, and that the October 29 day is just a planned work stoppage).

Staff resistance to the vaccine is one way to explain the anomalous BOP COVID numbers. Inmate COVID numbers as of yesterday were 172, down 37% from a week ago. Yet staff COVID infection remained more than double that, 454, down only about 3% from a week ago. With inmate recoveries (if that’s what they are), the number of BOP facilities with active COVID should be falling. Yet, the number remains at 103 of 122 facilities, 84% of all BOP prisons.

BOP staff resistance to COVID may provide prisoners seeking COVID compassionate release some traction. A BOP staff made up of those unwilling to be vaccinated carrying the disease into the facility on a daily basis may undermine government claims that the agency has the virus under control.

Government Executive, Coronavirus Roundup: Vaccine Rule Submitted to White House; 60% of TSA’s Workforce Is Vaccinated (October 14,2021)

Williamsport PA Sun-Gazette, Corrections workers protest Biden mandate (October 15, 2021)

Northcentral PA.com, Local picket of vaccine mandates inspires National Picket (October 15, 2021)

– Thomas L. Root

BOP Adoption of Rules for Earned Time Credits Delayed – Update for October 18, 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 IS RUNNING OUT THE CLOCK ON EARNED TIME CREDIT IMPLEMENTATION

slowwalking210226Criminal justice advocates and inmates alike cheered the passage of The First Step Act, legislation that (among other things) directed the Bureau of Prisons to grant earned-time credits to inmates who successfully complete evidence-based recidivism reduction programs (EBRRs) or so-called productive activities.

First Step made it sound like Christmas. When an inmate had completed 30 days of successful programming, he or she can get 10 to 15 days of credit, depending on PATTERN score. The credits can be used to increase the amount of time awarded for halfway house or increased home confinement at the end of a sentence. Up to 12 months of credits can be swapped for early release from custody, with the time added to supervised release.

But the devil’s in the details, and the BOP was quick to bedevil the earned-time credit program with those details. Inmates were buzzing at the of 2018 with visions of credit being awarded for programs in which they were already enrolled. Some thought that inmate employment as pedestrian as hallway orderly would qualify as a “productive activity.” Others were counting up the number of adult continuing education (ACE) classes they could take on topics as varied as creative writing or the plays of Shakespeare. Still others were figuring out how many courses they had completed prior to First Act passing, and wondering how to get retroactive credits for those.

devil180418The first detail to smack inmates in the face was the effective date of the program. As soon as it was clear that nothing was happening right away, everyone started looking at July 2019, when the PATTERN program was unveiled, as the date before which no credits would be awarded. Then the start became January 2020, when PATTERN was adopted in final form, and the BOP rolled out its list of EBRR-qualifying programs (omitting most of the ACE programs people had anticipated would count toward credits) and limiting “productive activities” to a precious few.

After January 2020, the BOP continued to deny credits to inmates. A few inmates have sued to have their credits awarded – starting with Rabbi Aryeh Goodman, an inmate at Fort Dix – seeking credits they said they had earned and demanding shortened prison sentences in the process. That was when some sharp-eyed analyst at the BOP argued that First Step did not require the award of any PATTERN earned credit until a two-year phase-in period under the statute has expired, which was January 15, 2022.

That argument got shot down. Courts have overwhelmingly found “no evidence in the statutory framework for delaying application of incentives earned by all prisoners during the phase-in program until January 15, 2022, the final date when BOP must complete the phase-in with respect to ‘all prisoners’.” (About the only inmate to lose this argument was former Trump lawyer Michael Cohen).

But the real detail – and the one that will gut the program like a fat carp – is First Step’s directive that credits be awarded “for every 30 days of successful participation in evidence-based recidivism reduction programming or productive activities.”  What exactly is a “day?” The BOP has proposed adopting a rule that a “day of successful participation” means eight full hours of programming. That means that a full 240 hours of EBRR programming would be needed to earn 10 days of credit (15 days if you’re a low or minimum PATTERN).  

sisyphus211018An inmate thus would have to program eight hours a day, five days a week, for years in order to earn the 12 months of credit that can be used to cut a year off of incarceration. This assumes that the inmate has no employment (but everyone does) and can schedule multiple programs efficiently, so that one starts as soon as another one ends. With mealtimes, recalls, counts, and callouts – all part of a federal inmate’s day – even an inmate without a job would be lucky to be able to string together six hours a day of time available for taking EBRRs, even if they were available.

On top of all of that, with the BOP practicing augmentation (and with no end to the correctional officer shortage in sight), the availability of teachers on any given day is an open question.

The BOP published a proposed rule almost eleven months ago, on November 25, 2020, that would adopt the 8-hour-a-day “programming day” standard. Over 250 responses were received by the time the public comment period closed on January 25. But today, the BOP is extending even further the rulemaking proceeding, issuing a notice that “upon review of the comments, it is unclear to the Bureau whether commenters had fully considered the issue of whether DC Code offenders in BOP custody are eligible for time credits under 18 USC 3624(d)(4).”

The BOP complains that First Step is ambiguous on this point, going into detail in today’s notice on an issue it dismissed in the initial rulemaking proposal as contrary to the statute.

Who’s kidding whom? The public did not consider the issue because in the original rulemaking notice, the BOP wrote that “an inmate who is in the custody of the Bureau, but is serving a term of imprisonment for a conviction under the law of one of the fifty (50) states, the District of Columbia… or any other territory or possession of the United States is not an ‘eligible inmate’.”

clockwatcher190620So, more than nine months after the comment period ending, the BOP has opened a further 30-day public comment period on the issue it rejected out of hand, and the public thus did not consider. After the additional period closes on November 18, the BOP will at some point issue a final rule. That will no doubt be on or right about January 15, 2022.

The BOP will have thus required 37 months to adopt draconian rules to implement First Step credits. And it will have run out the clock on its 3-year “phase-in” period.

Goodman v. Ortiz, Case No. 20-7582, 2020 U.S. Dist. LEXIS 153874 (D.N.J., Aug. 25, 2020)

Federal Register, FSA Time Credits, 85 FR 74268 (Nov. 25, 2020)

Federal Register, FSA Time Credits, 86 FR 57612 (Oct 18, 2021)

Reuters, U.S. Justice Dept clashes with inmates over credits to shave prison time (Aug 18)

– Thomas L. Root

Mixed COVID News From the BOP – Update for October 15, 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 OFFICIAL COVID NUMBERS DOWN, BUT THE NEWS ISN’T REALLY THAT GOOD

deadcovid210914As of yesterday, the Bureau of Prisons reported 261 inmate COVID cases, down 20% from a week before. Staff cases were only down 6%, to 455, and COVID was still in 113 of 122 BOP facilities. Inmate deaths now total at least 277, with another death of an inmate who – according to the BOP – had previously “recovered” according to CDC guidelines.

If the BOP is correct – and it always wants people to believe it is – 64% of all inmate deaths in the last seven months have been people who had COVID before and recovered. This is real-life data that refutes the government’s canard in compassionate release filings that if you have already had COVID, you won’t catch it again, and if you do, it won’t be any worse than the prior round.

Other unsurprising but bad news last week: the Journal of the American Medical Association reported that prisons had “consistently higher COVID-19 incidence and standardized mortality rates… relative to the overall US population in the first year of the pandemic. While COVID-19 incidence and mortality rates peaked in early 2021, with a decline since then, “the prison population had several times greater cumulative toll of COVID-19 relative to the overall US population.”

And more: Two real-world studies published last week confirmed that the immune protection offered by two doses of Pfizer’s Covid-19 vaccine drops off after as little as two months. The studies, from Israel and Qatar, published in the New England Journal of Medicine, support arguments that even fully vaccinated people are not nearly as COVID bulletproof as early CDC prognostications made them out to be.

As of last Friday, 66.84% of inmates were vaccinated, up 1.24 points from a week before. But only 55.21% of staff had been vaxxed, and that number was up a paltry 0.46 points from the week before. 

Vaccinesticker211005According to the Department of Justice Inspector General’s survey earlier this year, 63% of the BOP staff reported already been vaccinated or were planning to get vaccinated as soon as possible, by the BOP or otherwise. However, nearly 20% said that they were not sure whether they would get vaccinated and another 18% said they did not plan to get vaccinated at all. But President Biden has ordered that all federal employees get vaccinated, and BOP Director Michael Carvajal issued an internal memo on September 29, 2021, implementing Biden’s order and specifying “you must be fully vaccinated by November 22, 2021, or you will be subject to disciplinary action, up to and including removal from the federal service.”

Brandy Moore, a national union officer for Council of Prison Locals C-33, said there has been a lot of pushback and concern about the mandate for a variety of reasons, including “this was not a condition of employment, flu shots are not mandated, there is limited research on the long-term effects of the shots and inmates are not required to be vaccinated.” She told Government Executive, “The national union is very concerned about the amount of people that have actually said ‘I’m going to retire early, I’m going to quit, I’m going to go somewhere else. I don’t feel like this is a mandate that is constitutional…’ She said she estimated the BOP “may lose 10-20% of our staff,” which is “troublesome” because “staffing is our No. 1 concern” and has been since 2016.

John Butkovich, acting president for the union local representing 450 BOP workers at FCC Florence, told the Pueblo Chieftain that “he fears some correctional officers will quit when COVID-19 vaccinations become mandatory by November 22.

The Fort Worth Star-Telegram reported last Tuesday on the death of Tammy Lamere, the eighth inmate to die from COVID-19 at FMC Carswell. One inmate told the paper that the “hospital unit at Carswell is ‘infected with COVID’.”

plague200406“We are all scared and worried that this is not under control and we are being taken one at a time,” the inmate told the newspaper via email. “We are in trouble here in Carswell… the most vulnerable… and we are dying.” Another said, “In the world, any human sick as she is and with all her medical issues would be hospitalized and supported and cared for,” Blake wrote in an email. “Here they live or don’t. But one thing is promised, you will suffer and be alone.”

BOP Press Release, Inmate Death at FMC Devens (October 5, 2021)

JAMA, COVID-19 Incidence and Mortality in Federal and State Prisons Compared With the US Population, April 5, 2020, to April 3, 2021 (October 6, 2021)

Ft Worth Star-Telegram, Woman’s death from COVID-19 at Fort Worth prison sparks fear of virus resurgence (October 5, 2021)

CNN, Studies confirm waning immunity from Pfizer’s Covid-19 vaccine (October 7, 2021)

Forbes, Federal Bureau Of Prisons Staff 63% Vaccinated But Union Digging In Heels On Mandate (October 6, 2021)

Government Executive, COVID-19 Vaccine Mandate Could Exacerbate Understaffing in Federal Prisons, Union Warns (October 5, 2021)

Pueblo Chieftain, Here’s why morale is reportedly ‘horrific’ at the federal prison complex near Florence (September 30, 2021)

– Thomas L. Root

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