Tag Archives: BOP

The Week in COVID – Update for April 22, 2021

Leave a comment

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

COVID BY THE (DIMINISHING) NUMBERS

The number of BOP staff with COVID fell dramatically last week from 1,254 to 252, but the spike now sweeping the country showed up among BOP prisoners, with the numbers increasing from 208 a week ago Monday to 408 two days ago,  only to drop back to 336 as of today. The BOP says that COVID is still present in 82 facilities, but that is down from 115 a week before.

COVIDvaccine201221BOP Director Michael Carvajal told the Senate Judiciary Committee that all BOP staff had been offered the vaccine, and 51% had taken it. He said 66% of inmates offered the vaccine had taken it. The BOP reported 40,808 inmates have been vaccinated as of last Friday (26.8%), up from 23.04% a week ago, The number suggests that the vaccine has been offered to about 61,800 inmates so far. Carvajal said all inmates would be offered the vaccine by the end of May.

The “pause” in administering the Johnson & Johnson vaccine last week because of two reports of a rare blood disorder is expected to be lifted in the next few days. While Dr. Anthony Fauci has said that the pause should be viewed as a “testimony to how seriously we take safety,” some experts are worried that the pause could lead to increased vaccine hesitancy, particularly in vulnerable populations that might be less likely to trust medical institutions in the first place, such as prisons.

“Vaccine confidence tends to be lower amongst people who have been disenfranchised,” Dr. Wafaa El-Sadr, a Columbia University professor of epidemiology and medicine told ABC News. “Among incarcerated people, that hesitancy may be tied to a historical legacy of doctors experimenting on people in prison.”

fearofvaccination210422At last week’s BOP oversight hearing, Judiciary Committee members expressed concern about the low vaccine acceptance rate among BOP staff. Sen Amy Klobuchar (D-Minnesota) noted that “95% of Mayo clinic doctors have been vaccinated because they don’t want to give it to their patients.” She wondered why BOP staffers were not similarly motivated to protect inmates by getting vaccinated.

ABC News, Prisons postpone vaccinations with Johnson & Johnson shots paused (April 16, 2021)

– Thomas L. Root

Odd Couple Beat Up on Prison Head – Update for April 20, 2021

Leave a comment

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

SENATORS UNHAPPY OVER FIRST STEP IMPLEMENTATIONS

oddcouple210219Last Thursday’s Senate Judiciary Committee Oversight hearing opened with Committee chair Richard Durbin (D-Illinois) and Ranking Member Charles Grassley (R-Iowa) both blasting the BOP not just for its failures in placing inmates in home confinement, but for the PATTERN recidivism tool – which Durbin called “deeply flawed” – and for what they see as BOP slow-walking implementation of First Step Act programming.

Durbin complained that PATTERN contained “stunning racial disparity in inmate classification, and that the BOP’s proposed rule for awarding earned time credit – which requires 240 actual hours of programs for one month’s credit – “severely limits the ability to earn these credits, and that undermines participation.”

“Our prison system at the federal level is failing,” Durbin said in his opening remarks, “failing to fulfill its fundamental purpose, the rehabilitation of incarcerated individuals.”

Grassley said he was “disheartened with the lackluster implementation of the First Step Act. “The DOJ and Bureau of Prisons are implementing the First Step Act as if they want it to fail. I hope this is not true but actions speak louder than words.”

BOP Director Michael Carvajal said that COVID had hampered full rollout of the programming inmates could complete for earned credits that reduced their sentences, but Grassley responded, “I don’t think that national eFSAsabotage210420mergency can be used as a scapegoat… It seems like the Justice Department and the Bureau of Prisons have failed in this effort… Even if it isn’t so, at some point it becomes a perception, and perceptions become a reality.”

Carvajal told the Committee that about 50% of the 125,000 inmates reviewed were eligible to take programming for earned time credits. He told the Committee that last year, “even through COVID, we had over 25,000 inmates complete a program for time credit.”

This was a surprising admission, in my view. In litigation, the BOP has argued that its obligation to implement the evidence-based reduction programs and award Earned Time credits will not take effect until January 2022. That position – already rejected by several courts – seems to be undercut by Carvajal’s statement to lawmakers that 25,000 inmates got some ETC credit during 2020.

Senate Judiciary Committee, Oversight of the Bureau of Prisons (April 15, 2021)

Goodman v. Ortiz, Case No 20-7582, 2020 US Dist LEXIS 153874 (DNJ Aug 25, 2020)

– Thomas L. Root

Judiciary Committee Exercised Over Home Confinees Returning to Prison – Update for April 16, 2021

Leave a comment

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

LOBBYING EFFORT ON CARES ACT HOME CONFINEMENT MAY BE BEARING FRUIT

FAMM started to turn up the heat last week on an effort to get President Joe Biden and Attorney General Merrick Garland to rescind the January 15 memo from DOJ’s Office of Legal Counsel that would lead to the return of people now on home confinement under CARES Act placement to federal prison when the pandemic ends.

The memo was a prime topic yesterday when Bureau of Prisons Director Michael Carvajal testified before the Senate Judiciary Committee. Judging from the questions coming from both Republicans and Democrats on the Senate Judiciary Committee (with the exception of the execrable Sen. Tom Cotton [R-Klingon Empire] and Sen. Josh Hawley [R-Mongol Horde]), the FAMM campaign is bearing fruit.

hawley2100416

The OLC memo, issued in the final days of the Trump administration, would force the BOP to send several thousand people currently on home confinement. Carvajal said it would probably affect somewhere around 2,500 people now on home confinement with a year or more to go on their sentences. A few more than 300 have lengthy sentences left. Of the group, he said 21 have been returned to BOP custody, but only two of those were because of new criminal conduct.

The memo is incorrect as a matter of law and would impose devastating human costs, as well as a negative impact on public safety. Sen. Richard Durbin (D-Illinois), chair of the Committee, said yesterday he was writing to Garland to urge him to reconsider his predecessor’s opinion.

FAMM and 28 other advocacy groups sent a letter to Biden and Garland on April 1st. FAMM has launched the “Keep Them Home” campaign, and is both collecting signatures on a petition and calling on people to call Garland’s office in order to get the Administration to rescind the memo.

home190109FAMM president Kevin Ring told The Appeal that those who were released did not expect to have to return to prison. “These folks came home and were told, ‘You’re not going to have to come back,’” Ring said. “They reunited with their families. Some of them have kids who they said, ‘I’m home.’ They said, ‘Do you have to go back, Dad?’ ‘No.’ So this changes everything.”

Earlier, the BOP declined to answer reporters’ questions about the memo, but Joe Rojas, Southeast Regional Vice President of the union representing BOP employees, said sending everyone back to prison would be logistically impossible. “We have no staff,” he told The Sentinel, “We are already in chaos as it is.”

But yesterday, Carvajal said that the BOP has ample space to absorb the home confinees if they were to return. Nevertheless, he expressed no opinion on whether they should come back. The Director noted that the issue is not immediate, because the pandemic emergency has been extended by the President.

home210218My take on Carvajal’s position (for what it’s worth) is that his bias leans toward leaving people who have complied with their home confinement terms at home. He said repeatedly that the BOP’s mission was to successfully return people to the committee, and as long as home confinees are successful at home, there was nothing wrong with leaving them there.

However, Carvajal said that the BOP’s primary interest was to follow the law, and he urged lawmakers to amend the home confinement statute to make clear what should be done.

The Appeal, Unless The Biden Administration Acts, Thousands Could Go Back To Federal Prison (April 5, 2021)

FAMM Petition

KSU The Sentinel, Inmates under house arrest in the event of a pandemic could return to prisons in the United States (April 11, 2021)

Senate Judiciary Committee, Oversight Hearing on Bureau of Prisons (April 15, 2021)

– Thomas L. Root

Thursday is Hamburger Day – Update for April 12, 2021

Leave a comment

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

BOP DIRECTOR TO BE GRILLED ABOUT COVID, FIRST STEP

hamburger160826Almost every inmate in the Bureau of Prisons system looks forward to Wednesdays, when the nationwide lunch menu serves sandwiches that pass for hamburgers, with a side of fries. But this week, BOP Director Michael Carvajal’s hamburger day may come one day later.

Carvajal will testify this Thursday before the full Senate Judiciary Committee in the first comprehensive BOP oversight hearing since 2019. Politico said last week that principal issues will include how BOP has handled the coronavirus pandemic and how it has implemented the First Step Act. “On both counts,” Politico reported, “the Bureau has drawn bipartisan criticism.”

A BOP statement last week said Director Carvajal “is looking forward to the opportunity to provide the Senate Judiciary Committee with information at the upcoming Oversight of the Federal Bureau of Prisons hearing on the morning of April 15, 2021.” Yeah, I have no doubt of that… like a dental patient eagerly anticipates a root canal without Novocain.

oddcouple210219At the hearing, Carvajal will face Sen. Richard Durbin (D-Illinois) — now the committee chair — former chairman Charles Grassley (R-Iowa), Patrick Leahy (D-Vermont), John Cornyn (R-Texas), Cory Booker (D-New Jersey and Mike Lee (R-Utah), among others. Durbin, Grassley, Leahy, and Lee have been vigorous in their demands that the BOP should do more to move the most vulnerable inmates out of prison because of COVID-19. And Booker is a co-sponsor of the Federal Correctional Facilities COVID-19 Response Act, introduced two months ago to address inadequacies in the BOP’s management of the pandemic. “The Department of Justice’ response to the COVID-19 pandemic has been unacceptable and has placed nearly 2.3 million incarcerated people in danger,” Booker said at the time.

What will the Committee ask Carvajal? Well, it could start with the Director’s past statements about the BOP’s “transparency” on COVID. Carvajal told a House subcommittee in December that “the Bureau has published one of the most detailed and thorough COVID pandemic resource areas in the federal government on our public website at www.bop.gov/coronavirus.”

timebackward210412Is that a fact, Mr. Director? Sure, since April 2020, the BOP has provided a running total of the number of inmates who tested positive for COVID. But two months ago, the total mysteriously started going down. I initially thought that Steven Hawking had been right that the universe may someday contract: maybe it has begun, and time is moving backward. But that was not the case. Instead, the BOP had adopted the view is that if an inmate contracted COVID but thereafter was released, it should be treated as though he or she had never been there. Because the inmate had never been there, then his or her COVID case could not count against the BOP’s total.

Accounting brilliance, Mr. Director! But don’t be surprised if some on the Committee might be so forward-thinking, number-wise, and wonder whether – with enough time – the Bureau’s total number of historic COVID cases might regress to zero.

What’s more, the Bureau’s loose use of the definition of “recovered” might raise Committee doubts. Last week, the BOP announced that two more “recovered” inmates, both at the Springfield, Missouri, Medical Center for Federal Inmates, had died. One, Leonard Williams, contracted COVID in late February, but “on Monday, March 22, 2021,” the BOP said, “in accordance with Centers for Disease Control and Prevention (CDC) guidelines, Mr. Williams was converted to a status of recovered following the completion of medical isolation and presenting with no symptoms. On Saturday, April 3, 2021, Mr. Williams became unresponsive.” He was pretty unresponsive, all right. The EMT crew pronounced him dead before he got to the hospital.

Another inmate, Jaime Benavides, caught COVID in December but was declared “recovered” 10 days later. But “on Thursday, March 25, 2021, Mr. Benavides’ condition worsened and he was transported to a local hospital for further treatment and evaluation.” Committee members may how a “recovered” person’s condition can worsen. After all, he had “recovered!” Mr. Benavides died of his recovery on April 4.

numbers180327The Marshall Project has been reporting a tally of COVID in federal and state prisons every Friday for over a year. Last Friday, it informed readers that its

data no longer includes new cases from the Federal Bureau of Prisons, which has had more prisoners infected than any other system. In early March, the bureau’s totals began to drop because they removed cases of anyone who was released, a spokesman said. Similarly, in early April, the Bureau of Prisons lowered the number of deaths it was reporting among people held in private prisons. As a result, we cannot accurately determine new infections or deaths in federal prisons.

The New York Times noted last week in a report on COVID in prisons that its data were not complete because “the federal prison system and ICE did not regularly provide facility-level data for inmate infections or disclose the number of tests conducted on inmates or correctional staff members.”

Maybe the Committee will ask Carvajal about the BOP’s abysmal staff vaccination rate. Last week, the Federal News Network reported on a number of government agencies whose frontline workers were having trouble accessing vaccines. But, FNN said, “the Bureau of Prisons in the Justice Department is having the opposite problem. BOP says it offered the COVID-19 vaccine to all of its employees, but only 49% took the agency up on its offer. BOP says it can’t require employees to take the vaccine since the Food and Drug Administration hasn’t formally approved them yet.”

As of last Friday, the BOP reported only a very questionable 208 inmate COVID cases, but 1,250 sick staff, a number unchanged in the last two weeks. Committee members might justifiably wonder why the inmate number – which the BOP controls – has dropped so dramatically, while the staff number – which the BOP cannot control – remains so high.

Perhaps the Committee will want to know why the BOP touts that it had put 125,000 shots into arms as of last Friday, yet it reports only 23% of the inmate population has been vaccinated.

plagueB200406But it may just be that the Committee will be interested in some stats The New York Times ran in last week’s COVID in prisons story: Worldwide, two people out of 100 caught COVID. In the US, nine people out of 100 caught COVID. In the BOP, 39 out of 100 prisoners, although the “true count is most likely higher because of a dearth of testing.”

There’s more than Monday-morning quarterbacking to this hearing. The pandemic is not quite done. Researchers are warning that if the B.1.1.7 variant, which is more contagious, becomes more dominant, the nation could experience another peak in cases this summer that may be worse than the January peak.

It is likely that Thursday will be hamburger day for the Director. After all, Politico says he will be “grilled.”

Senate Judiciary Committee Calendar, Oversight of the Federal Bureau of Prisons

Politico, Prison chief to face congressional grilling (April 9, 2021)

S.328, Federal Correctional Facilities COVID–19 Response Act

DOJ, Statement of Michael D. Carvajal, Director Federal Bureau of Prisons (December 2, 2020)

BOP Press Release, Inmate Death at MCFP Springfield (April 7, 2021)

BOP Press Release No. 2, Inmate Death at MCFP Springfield (April 7, 2021)

The Marshall Project, A State-by-State Look at Coronavirus in Prisons (April 9, 2021)

FNN, Frontline feds facing inconsistent access to COVID vaccines (April 6, 2021)

The New York Times, Incarcerated and Infected: How the Virus Tore Through the US Prison System (April 10, 2021)

Insidenova, Spread of new COVID-19 variant may cause another peak in cases this summer, UVa researchers say (April 4, 2021)

– Thomas L. Root

Can You Hear Me (and My Lawyer) Now? – Update for April 9, 2021

Leave a comment

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

NPR REPORTS ON PUSH FOR ATTORNEY-CLIENT PRIVILEGE IN BOP EMAIL

NPR reported last week on congressional efforts to protect inmate email to lawyers from BOP snooping.

mail210409

In February, the House of Representatives approved the Effective Assistance of Counsel in the Digital Era Act by a vote of 414 to 11. The bill, now referred to the Senate Committee on Crime, Terrorism, and Homeland Security, would require the BOP to refrain from monitoring the contents of emails between inmates and their lawyers without a warrant.

The bill’s sponsor, Rep. Hakeem Jeffries (D-New York), said the vote garnered a large bipartisan majority at a time when lawmakers don’t agree on much.

wiretap210409The Congressional Budget Office predicted that if the legislation passed the Senate, the Federal Bureau of Prisons would have to build a new email system and create a registry of approved lawyers — measures it expects could cost $52 million through 2025.

A BOP spokesman told NPR that inmates and their contacts who use the email system “voluntarily consent to having all system activity monitored and retained.” He said that prisoners and their lawyers can communicate through phone, letters, or visits, which he said are not monitored by staff.

NPR, When It Comes To Email, Some Prisoners Say Attorney-Client Privilege Has Been Erased (March 31, 2021)

H.R. 546, Effective Assistance of Counsel in the Digital Era Act

– Thomas L. Root

BOP Cooks Books, Congress Stirs Pot – Update for April 6, 2021

Leave a comment

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

BOP COOKING THE COVID BOOKS, ACLU SAYS

White-collar crime inmates could learn something about slick accounting from the BOP.

cookbooks210406Up until five weeks ago, the BOP reported the total number of inmates who had tested positive for COVID-19, adding to the tally daily as new cases arose. As I reported last week, since February 24, the BOP has been changing the number daily by not just adding new cases, but by subtracting inmates who had tested positive in the past but who were no longer in custody. This accounting legerdemain has let the BOP understate the number of inmate cases by at least 1,115 through the end of March, which has reduced the positivity rate by a point, from 43.77% (had those inmates remained on the rolls) to 42.75% without them.

The Marshall Project reported the trickery last week, noting its weekly COVID prison “data no longer includes new cases from the Federal Bureau of Prisons, which has had more prisoners infected than any other system. In early March, the bureau’s totals began to drop because they removed cases of anyone who was released, a spokesman said. As a result, we cannot accurately determine new infections in federal prisons.”

The ACLU and other prison watchdog groups contend the BOP’s testing procedures are inadequate. According to the Riverfront Times, Sharon Dolovich, the director of the UCLA Law COVID-19 Behind Bars Data Project, said, “We know that those are under-counts because there are many facilities that are reporting zero, or under ten or under twenty infections,” Dolovich says. “And both because of what we know from COVID, and from what we’ve seen in countless facilities a year into the pandemic, we know that if you’re a prison with twenty infections, you have many more than twenty people who are infected.”

Maria Morris, director of the ACLU’s National Prison Project, said that BOP officials are motivated to under-test and therefore to under-count infections. “And then they can say COVID isn’t a problem in our facilities. ‘Look at how low our numbers are,'” she told the Riverfront Times.

A BOP spokesperson responded that BOP employees work closely with local health departments to ensure priority testing is provided to staff who are in close contact with COVID-19-positive personnel, while the federal prison agency has obtained a national contract to perform all staff testing.

battleplan210406“Whatever policies they have on paper aren’t actually being implemented,” Dolovich replied. “So they could tell you things that actually sound good in theory. But when you actually talk to people incarcerated in the various facilities, they will tell you that the reality is very different.”

Even before the BOP’s latest numbers game, Senators Elizabeth Warren (D-Massachusetts) and Cory Booker (D-New Jersey) reintroduced the Federal Correctional Facilities COVID-19 Response Act (S.328 in the Senate) to address inadequacies in the BOP’s COVID response.

The legislation would require correctional facilities to begin providing free, weekly COVID-19 testing and vaccines to both the incarcerated and their employees and assure that they offer free medical care to those who test positive for it. Oversight would include requiring these facilities to submit weekly testing data to the Department of Justice, the Centers for Disease Control and Prevention (CDC), and state public health officials. CDC officials would be dispatched to sites where outbreaks emerged within 72 hours.

BOPCOVID-19-200622“The Department of Justice’s response to the COVID-19 pandemic has been unacceptable and has placed nearly 2.3 million incarcerated people in danger,” Booker said. “It is well known that people in prison and jail tend to have much higher rates of underlying health issues than the general public, and the conditions of confinement make social distancing virtually impossible. As a result, people in prison and jail are disproportionately contracting and dying of COVID-19.”

The BOP ended yesterday claiming only 371 sick inmates. The number of sick staff, however, remains stubbornly at about where it was a week before, 1,268. COVID is still present in 116 facilities. While the BOP claims generally to have delivered 110,489 shots in arms, its detailed listing as of last Friday reveals only 19.2% of the inmate population has been vaccinated.

The Marshall Project, A State-by-State Look at Coronavirus in Prisons (April 2, 2021)

The Riverfront Times, Why Did a St. Louis Man Die in a Federal Prison Coronavirus Hotspot? (March 24, 2021)

Homeland Preparedness News, Legislation to provide greater oversight of federal prisons’ COVID-19 efforts reintroduced to Congress (April 5, 2021)

S.328, Federal Correctional Facilities COVID–19 Response Act 

– Thomas L. Root

Lawsuits and Voodoo Accounting: Last Week in the BOP COVID Wars – Update for April 1, 2021

Leave a comment

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

INMATE COVID CLASS ACTION SUITS GO 1-1

habeas_corpusThe class-action suit brought by FCI Waseca inmates challenging that institution’s inadequate response to COVID-19 sputtered to an end two weeks ago, as the U.S. District Court in Minneapolis ruled the women could not “assert a constitutional claim relating to the conditions of confinement” in a 28 USC § 2241 habeas petition.” A circuit split exists on this issue, but the 8th Circuit is on the wrong side of the split, at least insofar as the Waseca inmates are concerned.

The court ruled that if the FCI Waseca petitioner wanted to seek any remedy based on conditions of confinement, they had to bring a civil rights complaint, which would be subject to the Prison Litigation Reform Act. That Act, of course, requires that the inmates exhaust administrative remedies first, a fancy term meaning that they would have to work their way through the Bureau of Prisons byzantine remedy process, presenting their complaints to three different levels inside the BOP (and having those claims rejected, as is the BOP’s habit). The quickest way through the administrative remedy process takes about six months or so, which is a lifetime when inmates are dropping like flies from COVID.

The difference between the circuits is clear in the pending FCI Lompoc suit. Last week, the U.S. District Court in Los Angeles ordered FCC Lompoc to let Dr. Homer Venters, a court-appointed prison epidemiology expert, back into the institution within the next month for a second inspection, with a deadline of May 12 to file his report with the court. In so ruling, the court rejected the BOP’s argument that Venters – who has been unstintingly critical of the BOP’s response to the coronavirus epidemic – is not a neutral expert.

The Lompoc class action habeas corpus action is set for a hearing on summary judgment motions on June 15th.

numbers180327The BOP’s COVID numbers continued to fall last week. As of Friday, the BOP reported 394 inmate and 1,265 staff COVID cases systemwide. It’s still everywhere, with active cases in 119 BOP facilities. With 72% of the inmate population tested, the positivity rate is still over 43%.

The BOP reported that as of the end of last week, 15.3% of inmates and 45.4% of staff have been vaccinated, while at the same time claiming in other stats that it has delivered over 99,000 doses into arms.

The numbers don’t add up, but paying too much attention to BOP COVID numbers simply confuses. For instance, last week, The Marshall Project, which has reported weekly on COVID in prisons for months, noted that “while new infections in prisons have dropped in recent months from their highest peaks in mid-December, this data no longer includes new cases from the Federal Bureau of Prisons, which has had more prisoners infected than any other system. In early March, the Bureau’s totals began to drop because they removed cases of anyone who was released, a spokesman said. As a result, we cannot accurately determine new infections in federal prisons.”

unperson210401It’s pretty slick. Up until February 24, the BOP reported the total number of inmates who had tested positive for COVID-19, a running number that has only increased over time. But since February 24, the BOP has been changing the number daily by adding new cases while subtracting inmates who had tested positive in the past but who were no longer in custody. This accounting legerdemain has let the BOP understate the number of inmate cases by 1,115 through the end of March, which has changed the positivity rate by a point, from 43.77% (had those inmates remained on the rolls) to 42.75% without them.

Inmates become uninmates. How Orwellian…

And sometimes, the BOP doesn’t get to count COVID cases as active at all. Last week, an inmate at USP Florence died of COVID, but never tested positive for the disease in life. Only after his death did pathology determine he had died of undiagnosed COVID. No one knows for sure how many inmate COVID cases were simply never accounted for.

The BOP has not yet reported on how many inmates being offered the vaccine have not received it. However, a Kaiser Health News report last week, noting that 38% of Danbury inmates offered the vaccine rejected it, suggested that inmate reluctance might be because inmates believe that institutions have done a poor job of pandemic: “Inmates pointed to numerous COVID deaths they considered preventable, staffing shortages and guards who don’t wear masks. While corrections officials defended their response to COVID, [one inmate] said he’s apprehensive about how the department handles ‘most everything here recently,’ which colors how he thinks about the vaccines.”

Malcom v. Starr, Case No 20-2503, 2021 U.S. Dist. LEXIS 45387 (D. Minn. March 11, 2021)

Order, ECF 191 in Torres v Milusnic, Case No CV 20-4450 (C.D. Cal. March 22, 2020)

Mankato Free Press, ACLU lawsuit against Waseca prison dismissed (March 23, 2021)

Lompoc Record, Trial date approved in Lompoc prison COVID-19 class-action lawsuit; second inspection authorized (March 27, 2021)

The Marshall Project, A State-by-State Look at Coronavirus in Prisons (March 26, 2021)

BOP, Inmate Death at USP Florence (March 24, 2021)

Kaiser Health News, Inmate Distrust of Prison Healthcare Fuels Distrust of COVID Vaccines (March 25, 2021)

– Thomas L. Root

The Short Rocket – Update for March 26, 2021

Leave a comment

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


SOME BRIEF ITEMS FROM LAST WEEK…

rocket190620Senators Want BOP COVID Deaths Investigated: Twenty-two Democrat senators asked the Justice Department inspector general on Thursday to review all of these deaths. “Although BOP investigates each case involving the death of an individual in their custody, these one-off reviews of each individual COVID-19-related death may not be sufficient to determine system-wide failures in care across the entire federal prison system,” they wrote. “A comprehensive review would not only provide a full accounting of the circumstances surrounding each individual loss of life but would also help policymakers establish whether the appropriate BOP policies were in place and being followed in each case, as well as whether new policies or practices should be implemented to reduce risk during the current pandemic and to prevent similar outbreaks in the future.”

Letter to Michael Horowitz from Sen. Elizabeth Warren and others (March 18, 2021)

BOP Launches Newsletter: The BOP Reentry Services Division announced last week it has launched a national inmate newsletter “to enhance communication with the inmate population.” Entitled “Reentry Quarterly,” this publication includes a variety of articles focused on reentry resources for a diverse audience with a goal of providing something meaningful for every inmate. Topics have included post-release housing, inmate discipline, financial responsibility, Medicare, anger management, education, drug treatment, career/work, and parenting.

BOP, Bureau Introduces National Inmate Newsletter (March 18, 2021)

numberone210326Immigration Offenses Are Number 1 in 2020: Immigration offenses, followed by drug trafficking, were the most common crimes sentenced in federal courts last year, according to a US Sentencing Commission issued last week.

Reflecting the Trump administration’s crackdown on undocumented immigrants, immigration violations alone accounted for 41% of the caseload, a slight uptick from 38% the previous year, the USSC said in its annual report.

The majority of those sentenced were Hispanic and just over 46% of the Hispanics were non-US citizens.

The Crime Report, Immigration Cases Took 41% of Federal Caseload in 2020 (March 16, 2021)

COVID News: The BOP vaccinated 2,481 inmates last week, bringing the total to 11.3% of the inmate population. During his testimony on March 18, BOP Director Michael Carvajal told the House Subcommittee on Commerce, Justice, Science and Related Agencies said that 100% of inmates will have been offered the vaccine by July 2021.

According to Carvajal, home confinement has been successful. Only 21 people sent home have been returned to prison, and only one of those for new criminal conduct. The others were sent back for violations of conditions.

House Subcommittee on Commerce, Justice, Science and Related Agencies, COVID Outbreaks and Management Challenges: Evaluating the Federal Bureau of Prisons’ Pandemic Response and the Way Forward (March 18, 2021)

BOP, COVID-19 (March 19, 2021)

– Thomas L. Root

BOP Director Called ‘Incompetent’ in Subcommittee Hearing – Update for March 23, 2021

Leave a comment

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

ZOOM, BOP, POW!

zoom2103423Federal Bureau of Prisons Director Michael Carvajal testified last week before the House Subcommittee on Commerce, Justice, Science and Related Agencies. The nearly two-hour session, conducted over Zoom for COVID reasons, got ugly fast.

The headline grabber was Carvajal’s disclosure that all 37,000-plus of BOP employees have been offered the COVID vaccine, but only 49% have taken it. Congressman Ed Case (D-Hawaii) said with some incredulity, “Something is wrong when half of the officers that can take it, don’t… it is a public health matter… We’ve got to get the guards vaccine. It risks health safety and welfare of those prisoners.”

clueless210323Congressman Mike Garcia (R-California) asked Carvajal to compare the BOP’s management of COVID to private prisons housing federal inmates, looking at inmate deaths for each. “It’s hard to compare them because our numbers are so different,” Carvajal responded rather evasively. The information, of course, is easily obtained from the BOP’s own website, and it isn’t even embarrassing to the BOP. The prison systems’ experience is about the same, with 12.5 deaths per 10,000 inmates in private prisons, 14.9 deaths in the BOP.

Congresswoman Brenda Lawrence (D-Michigan) braced Carvajal about conditions at FCI Danbury camp, where, she said, female inmates were denied soap, medical supplies, and feminine hygiene products, while be temporarily housed in the visiting room of the men’s prison. The director denied knowing anything about that, but told Lawrence that reports of harsh pandemic conditions were “often mischaracterized or exaggerated.” He said hygiene and medical supplies were ample, dismissing Lawrence’s report: “I don’t believe that to the level that people didn’t have them.”

But the real fireworks came from two Congressmen. Steve Palazzo (R-Mississippi) complained that his office was inundated by complaints from families of elderly, non-violent inmates eligible for CARES Act release, but the BOP delayed home confinement placement. This accusation will not come as much of a shock to many inmate families. Carvajal responded that the BOP had done a wonderful job placing inmates on home confinement.

But when Congressman David Trone (D-Maryland) began questioning, the kid gloves came off. He reminded Carvajal of a meeting he had with the Director over a year before, at the end of which Carvajal promised to get Trone information he had requested. When nothing was forthcoming after a few weeks, Trone wrote to the BOP on March 31, 2020, repeating his request. Nothing happened. So the Congressman wrote again on April 17, 2020. Again he received nothing. He then sent his staff to meet with the BOP on April 23, 2020, again asking for the information.

Being stonewalled by the BOP because you’re simply unimportant? Wow. No inmate or family member has ever experienced that. Trone implied that the BOP’s dismissive treatment of his request had something to do with his not being on the Subcommittee on Commerce, Justice, Science and Related Agencies at the time. He was just one of a thundering herd of 435 members of the House. Now, he’s in a position to mess with BOP appropriations.

oops170417Oops.

Trone told Carvajal he had just sent the letter again, asking for information the BOP had first promised him over a year ago. The Congressman said pointedly, “I recommend to the Biden Administration that you and your staff are incompetent and be fired. So my question for you is, can I get a ‘yes ‘to answering all of our questions?”

A chastened Carvajal promised the information.

“That would be just great,” Trone shot back, “one year later.”

Trone also went after the BOP on First Step Act recidivism programming. Carvajal said 51,000 inmates were currently taking such programming, and 21,000 have completed it. But Trone cited the December 2020 Independent Review Commission report that bluntly predicted that the BOP will fall woefully short in meeting the January 2022 programming deadline, even while institutions are returning First Step programming money that they say they can’t use. Trone asked what additional resources the BOP needed to meet the deadline.

word210323Carvajal said he’d have to get back to Trone on that.  After all, Mr. Director, who could have supposed that Congress might be interested in the implementation of First Step, the biggest criminal justice bill in almost 30 years? Carvajal’s assurance that he would provide the Subcommittee with information he should have on hand but did not led Chairman Mike Cartwright (D-Pennsylvania) to close the session with what anyone would read as an admonition to Carvajal: “We’re going to take your promises at face value.”

That, of course, begs the question: What is the face value of a BOP promise to provide Congress with information? This would probably not be a good time to ask Congressman Trone that question.

House Subcommittee on Commerce, Justice, Science and Related Agencies, COVID Outbreaks and Management Challenges: Evaluating the Federal Bureau of Prisons’ Pandemic Response and the Way Forward (March 18, 2021)

Govt Executive, Less Than Half of Federal Bureau of Prisons Staff Have Accepted COVID Vaccines From the Agency (March 18, 2021)

– Thomas L. Root

Despite the Hoopla, Under 10% of BOP Inmates Are Vaccinated – Update for March 16, 2021

Leave a comment

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

VACCINATIONS CRAWL AHEAD

COVIDvaccine201221The BOP claimed the lowest number of inmate COVID cases yesterday (621) since April 23, 2020, but with the pace of new inmate tests slowing to a crawl, the agency isn’t finding what it isn’t looking for. Staff cases remain as high (at 1,392) as they were the last week of November, and COVID is still present in 124 institutions of thew BOP’s 128 facilities.

The BOP’s vaccination numbers are climbing, but ever so slowly. The first inmates felt the needle in December, but 90 days later, only 9.7% of the inmate population has been inoculated (up from 6.6% a week ago). At this point, 44% of the BOP staff has taken the shot (up from 41% a week before).

Don’t let anyone say BOP employees don’t contribute to their communities. Last week, The Villages, Florida, News reported, “On the day when seven more local COVID-19 deaths were reported, statistics from the BOP showed that 8.55 of cases among staff members across the country are at the massive prison facility in Coleman – just outside the confines of the southern portion of The Villages.”

I have previously expressed skepticism over the BOP’s public numbers of inmates “recovered” from COVID-19. It appears I have company. In United States v. Mathews (reported on yesterday), Judge Karen Nelson Moore noted that “according to the BOP and the Department of Justice, in the federal prison system, 1,804 incarcerated persons have COVID-19, 45,542 have ‘recovered’ from COVID-19, and 222 have died from the virus.” The quotation marks with which she bracketed the word ‘recovered’ suggest the judge has the same trouble accepting the BOP’s reported number as authoritative that many others have.

A New Jersey news outlet reported a story with an all-too-familiar ending. When inmate Dominick Pugliese finally won his CR motion in February, the former Ft Dix inmate was already nearly dead. Dom had told the court in repeated motions that COVID could place him in greater danger of having a serious illness due to his asthma and hypertension, according to court documents.

notsick210316Prosecutors naturally opposed Dom’s motions, saying he had not served enough of his sentence and questioning the seriousness of his medical issues. By the time Dom was finally released – after repeatedly being turned down – his lawyer told the court that Dom was on a ventilator, no longer respond to verbal or tactile stimuli. Medical staff described his condition as “‘extremely grave,’ with a 78% likelihood of mortality,” counsel said. “The defendant, Dominick Pugliese, is dying.”

The judge finally agreed to release Dom, holding that “the severity of his condition suggests that at best he may be facing prolonged hospitalization and rehabilitation.” That turned out to be optimistic. Dom died on March 6. The good news for the BOP, of course, is that its bean counters did not have to add his death to the current 240-deceased inmate tally.

Villages News, 8.5 percent of COVID-19 cases among federal prison staff at Coleman facility (March 8, 2021)

NJ.com, 2 inmates begged for release from federal prison in N.J. where coronavirus raged. They both died of COVID. (March 13, 2021)

– Thomas L. Root