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BOP Solves COVID Problem By Not Looking For It – Update for March 9, 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 RUNS A REVERSE ON COVID TESTING


The BOP COVID numbers kept plummeting last week, ending the day yesterday with 783 sick inmates, down 46% in a week. But, strangely enough, staff COVID numbers remain stubbornly high at 1,569, nearly at the level of a week before. COVID is still in 126 BOP facilities.

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For over 10 months, inmate COVID cases always exceeded staff cases, once by a factor of five. But on Feb 11, the number of staff cases passed the number of inmate cases for the first time. Last Friday, it was 100% higher.

This may be why: Last April, the BOP warned its increased inmate testing program would “increase the number of COVID-19 positive tests reflected on the BOP’s… public website.” Now, someone at Central Office has figured out that the obverse is equally true: less testing decreases the number of inmate COVID cases.

From Aug 1 through Feb 15, the BOP averaged 331 tests a day. But since Feb 15, the testing rate has fallen dramatically. Last week, the daily average was 44 tests a day. Yesterday, the BOP reported only 32 inmate tests in the entire system.

It’s not like the BOP has run out of people to test. Its own numbers show that about 45,000 inmates have never been tested. The current positivity rate of 44% – meaning that 44 out of 100 inmates tested had the virus – suggests about 20,000 undetected cases are still in the system.

covidtest200420The BOP does not control the staff COVID numbers: staffers get their own tests. So the inmate number, which the BOP controls, keeps falling. The staff number it does not control continues to reflect reality.

The BOP’s numbers last Friday showed that 41% of the staff have gotten the COVID vaccine, while only 8.4% of inmates have been inoculated. Only 72% of all BOP facilities report receiving the vaccine, with FCI Marianna having the highest percentage of inmates vaccinated, 53.5%, while three reporting facilities – Seatac, Miami, and Devens – report no inmates have taken the shot. A total of 2,233 inmates (1.5% of all inmates) were vaccinated last week.

The BOP told a Connecticut federal court last week (in a case involving FCI Danbury) that inmates who decline vaccinations without a documented medical reason will not be given further consideration for CARES Act home confinement. The BOP said it would consider home confinement for inmates who accept vaccinations, up until the time they are fully inoculated (usually two weeks after receiving the second dose).

return161227An article in The Regulatory Review argued the Dept of Justice’s January legal opinion that people in home confinement had to be recalled to federal prisons after the pandemic ended is flawed: “What the CARES Act limits to the covered emergency period is the Bureau Director’s authority to lengthen the permissible amount of time that people can spend in home confinement. Once a person’s home confinement period is properly lengthened by the Bureau — during the emergency, when the Bureau has the authority to do so — nothing in the law requires that someone’s period of home confinement must be shortened once the pandemic is over. The statute only limits when the Bureau of Prisons has authority to move people into home confinement for longer durations of their sentence.”

Finally, the Bureau of Prisons Reform Caucus, which started with a couple of congressmen last fall, has added to its membership and purpose. Now with at least eleven congressmen and women as members, the Caucus issued a series of statements last week on its purpose and plans. Caucus chair Fred Keller (R-Pennsylvania) said, “This pandemic has brought to light many failures in the BOP’s operations, including detrimental inmate transfer policies, staffing shortages, and agency retention issues. The various backgrounds and experiences of the members of this caucus will enable us to better tackle these issues on behalf of the American people.”

Press Release, BOP Expands COVID-19 Testing (Apr 24, 2020)

Associated Press, Inmates refuse inoculations in Connecticut federal prison (March 3, 2021)

The Regulatory Review, The Justice Department Should Preserve Home Confinement (March 1, 2021)

NorthCentralPA.com, Bureau of Prisons Reform Caucus releases series of statements on future plans, accountability (March 5, 2021)

– Thomas L. Root

CARES Act Extended, But Does the BOP ‘Cares’? – Update for March 1, 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 AND CARES ACT HOME CONFINEMENT TO GO ON… FOR NOW

caresbear210104CARES Act Re-upped, As If the BOP Cares: The CARES Act, passed in March 2020, dumped truckloads of money on the coronavirus pandemic. More important that piles of dough (for our purposes, at least), Section 12003 authorized the Federal Bureau of Prisons to place inmates in home confinement as long as the nation is under a COVID emergency and the Attorney General has determined that the “emergency conditions will materially affect the functioning of the Bureau.” President Trump declared a COVID emergency under the National Emergencies Act a few weeks before CARES passed, and Attorney General William Barr made the materiality finding on April 4th.

Under the National Emergencies Act, an emergency only lasts a year unless the President extends it. That means the emergency would have ceased today, and with it, the CARES Act authority would expire.

Last week, President Biden extended the COVID emergency without specifying an end date (which is common). In essence, the COVID emergency will be over with Biden says it is. Biden wrote, “The COVID-19 pandemic continues to cause significant risk to the public health and safety of the Nation. More than 500,000 people in this Nation have perished from the disease, and it is essential to continue to combat and respond to COVID-19 with the full capacity and capability of the Federal Government.”

One could reasonably infer from the President’s statement that the “full capacity and capability” of the government would include continued BOP use of its CARES Act home confinement authority. Yet, as the New York Times observed last week in a scathing article about the BOP’s failure to use home confinement at FCI Danbury, “just 7,850 of the 151,735 people serving federal sentences right now have been granted home confinement — about 5%. State prison populations have fallen by 15% since the pandemic began, according to the Prison Policy Initiative, but not because inmates are being released to home confinement. Instead, many state prisons simply have stopped accepting transfers from county jails.”

The BOP website prefers to trumpet that “the total number of inmates placed in home confinement from March 26, 2020 to the present (including inmates who have completed service of their sentence) is 22,158.” But it turns out that most of those people were placed there in normal course by halfway houses or under elderly offender home detention. The CARES Act home confinees have not constituted much more than a dribble.

home210218The Times reported that “Danbury was singled out for prompt action” by Barr last April, “because it had seen an outbreak, [but] only about 100 inmates have been granted home confinement so far, many as recently as December. At least 550 are still under consideration, most of them convicted of nonviolent offenses like fraud or drug possession.”

It’s not like the problem is limited to Danbury, either. A California federal court found last summer that “[d]espite… the existence of emergency conditions facing the BOP as the result of the pandemic… there is no evidence Respondents are prioritizing their use of statutory authority under the CARES Act to grant home confinement to Lompoc inmates… or giving due consideration to inmates’ age or medical conditions in evaluating eligibility of home confinement.” And a New York federal court found that “rather than attempt to use home confinement, furloughs, and compassionate release as tools to reduce the density among the most vulnerable inmates, the prison chose to not pursue that path at all until well after the initial outbreak had subsided.”

In fact, at Danbury, the BOP settled a class action lawsuit by promising to expedite release of inmates to home confinement. But five months after the BOP and Danbury warden made the deal, a Connecticut federal court found they had “breached the provision of the Settlement Agreement requiring that they ‘endeavor to release individuals approved for home confinement to home confinement within 14 days of the approval decision.”

About 48,000 of the 105,000 inmates the BOP has tested (still, a year later, only 69% of its inmates have had the nose swab) have contracted COVID. This is despite the BOP’s self-lauded “multiphase action plan” to protect inmates and staff from COVID-19. A Pennsylvania federal court dryly observed that “[t]he government’s assurances that the BOP’s ‘extraordinary actions’ can protect inmates ring hollow given that these measures have already failed to prevent transmission of the disease.” The agency’s slow-walk implementation of CARES Act placement cases seems to be cut from the same cloth.

The COVID Curve: The BOP continued last week to report fewer COVID cases. Last Friday’s total of 1,414 was down 29% from the week before. Staff cases remain stubbornly high, 1,622 (down only 3% from the week before). COVID remains present at 128 facilities, up two from last week, but there have been no reported deaths in the last 7 days.

As of Friday, the BOP reported vaccination data for 78 facilities. It reports that about 34% of its 36,000 staff have been vaccinated, and 6.9% of inmates have gotten the shot (up from 5.3% last week). The number of vaccine doses the BOP says it has distributed suddenly froze last week at 58,300, after climbing steadily since January. This suggests the BOP is out of additional doses until it gets its next distribution.

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Plotting the rise and fall in inmate COVID numbers against the national ebb and flow shows the graphs are nearly a perfect fit. This is troubling, because late last week, Dr. Rochelle Walensky, director of the U.S. Centers for Disease Control and Prevention warned that with relaxing restrictions and a spread of variant viruses, the declines since January “may be stalling, potentially leveling off at still a very high number. We at CDC consider this a very concerning shift in the trajectory.” The nation had an average of about 66,350 new daily coronavirus cases a day over the last week, higher than the week before which was 64,000 new cases a day.

If national numbers rise again, history suggests the BOP numbers will, too.

Equally troubling is the fact that BOP staff COVID cases have not shown the kinds of decline that inmate and national numbers have. Beyond that, it has taken the BOP over two months to get a mere one-third of its staff vaccinated. The likelihood that staff is the primary vector for spreading COVID inside facilities thus remains high.

Federal Register, Continuation of the National Emergency Concerning the Coronavirus Disease 2019 (COVID-19) Pandemic (86 FR 11599, Feb 26, 2021)

CARES Act (Mar 26, 2020)

New York Times, Vulnerable Inmates Left in Prison as Covid Rages (Feb 27, 2021)

Torres v. Milusnic, 472 F.Supp.3d 713 (C.D. Cal. July 14, 2020)

Fernandez-Rodriguez v. Licon-Vitale, 470 F.Supp.3d 323 (S.D.N.Y. July 2, 2020)

Whitted v. Easter, Case No. 3:20-cv-569 (D.Conn. December 11, 2020), 2020 U.S. Dist. LEXIS 232843

Wilson v. Williams, 961 F.3d 829 (6th Cir. 2020) (Cole, C.J., dissenting).

United States v. Rodriguez, 451 F.Supp.3d 392 (E.D. Pa. 2020).

Los Angeles Times, New fears of next coronavirus wave as case declines slow and variants grow (February 27, 2020)

– Thomas L. Root

BOP COVID Cases Looking for Bottom, But Vaccinations Lag – Update for February 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.

BOTTOM FOUND IN COVID CASES?

COVIDvaccine201221The BOP may have bottomed out on inmate COVID cases. Yesterday’s total of 1,526 was down 13% from the week before. Staff cases notched down from 1,683 to 1,657 by midweek, only to climb again to 1,661. COVID remains present at 128 facilities, with a questionable total of 236 deaths (recall how three dead federal prisoners in private facilities miraculously came back to life a few weeks ago).

As of yesterday, the BOP reported vaccination data for 75 facilities, about 59% of its locations. It reports that about 32% of its 36,000 employees have been vaccinated, a slight increase from two weeks before, when it reported 28% had taken the shot. The number of inmates getting vaccinated – only 4.6% of the population two weeks ago – has inched upward to 6.1% as of yesterday.

The slow pace in vaccinations (about 2,500 staff and inmates in one week) suggests that the agency is short of vaccine until the next round is distributed. When that will happen has not been announced. The BOP has even left the Centers for Disease Control and Prevention in the dark: FEDWeek reported last Tuesday that “CDC data show that the Bureau of Prisons has administered both needed doses to some 17,000 persons and the initial dose to another 13,000, but that does not break out how many of those have gone to its employees vs. prisoners.”

numbers180327The CDC numbers vary widely from the totals shown on the BOP website, but that’s hardly surprising. Numbers on one page of the website (allegedly over 53,000 doses administered) vary dramatically from numbers broken out by institution (20,712 total inoculations). Head-scratching, to be sure.

Huffpost last week picked up on what I have been reporting since last summer, how the BOP has declared inmates to be “recovered,” only to have them then die. Huffpost reported on Joseph Fultz, a Terre Haute inmate who contracted COVID last month:

Then, exactly 14 days later, the BOP added him to the ‘recovered’ column,” Huffpost reported. “But Fultz, a 52-year-old man with a serious heart condition and epilepsy, had not recovered. On Feb. 8, a month to the day after his arrival in Terre Haute, he died of COVID-19-related illness, his unresponsive body discovered in his cell. Fultz’s death illustrates the incomplete and often misleading nature of COVID-19 data released by correctional facilities, and underscores how little we understand about the damage the virus is wreaking behind bars.

The CDC announced last week that seven domestic variants of the COVID virus have been identified, as well as the three foreign variants from UK, Brazil and South Africa already found. Michael Osterhelm, director of the Center for Infectious Disease Research and Policy at the University of Minnesota, told CBS News, “The next 14 weeks I think will be the worst of the pandemic. People don’t want to hear that. But if we look at what these variants are doing, particularly this one from the United Kingdom, and see what it did in Europe, see what it’s done in the Middle East –it’s now beginning to start that here in the United States – we are going to see that unfold.”

On Saturday, FCC Coleman reported 119 COVID cases just among staff, according to local press reports. Coleman reported that 62% of its allotted vaccine went to inmates, suggesting that a majority of staff refused inoculation.

plagueB200406Perhaps nowhere were conditions more wretched last week that at FMC Carswell, the BOP’s only female medical facility. While Carswell retained electricity, the heat never kicked on and only cold water was available from Sunday to Monday evening, the Ft. Worth Star-Telegram reported. As of Tuesday, 31 women officially still had COVID-19,” the paper said, “although many more were still sick from the virus, family members and women at the prison said.”

FEDWeek, Concerns Remain about Pace of Vaccinations for Federal Employees (February 16, 2021)

Huffpost, He Got COVID In Prison. The Government Said He Was ‘Recovered.’ Then He Died. (February 19, 2021)

CBS News, Epidemiologist on new CDC school guidelines, COVID-19 variants and vaccine (February 15, 2021)

Villages-News, 20 more local COVID-19 deaths as outbreak hits staff at Coleman federal prison (February 20, 2021)

Ft. Worth Star Telegram, Women, some sick with COVID-19, left ‘freezing’ without heat at Fort Worth medical prison (February 16, 2021)

– Thomas L. Root

COVID Miracles (Performed by Statisticians) – Update for February 8, 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.

A COUPLE OF COVID MIRACLES… OTHERWISE, A BAD WEEK FOR THE BOP

Despite what was a pretty bad run last week, PR-wise, for the Federal Bureau of Prisons, we were privileged to witness a couple of miracles of Biblical proportion.

Screen Shot 2021-02-08 at 9.03.53 AM

First, the numbers: The BOP continues to write down the COVID-19 inmate totals. As of last Friday, the BOP reported 2,273 sick inmates, down 43% from the week before. Curiously, the agency reports 1,729 sick staffers, a mere 3% reduction from the week before. Cynics might say that when you control the patients, you can say when they’re recovered and when they’re not. Controlling employees who go home at the end of each shift… not so easy,

At the end of the week, the BOP reported 229 federal prisoner deaths, an increase of five. The BOP says it has tested 68% of all inmates at least once, with a whopping 44.6% testing positive for COVID.

Raisedead210208Now for the miracles: Three federal prisoners housed in private prisons have miraculously come back to life, at least on paper. Last Tuesday, the total number of inmate deaths in the private prisons dropped from 16 to 13 without explanation. The private operators, who are losing their federal contracts, seem to know something about how to cure people of COVID. Or perhaps they’ve taken the story of Lazarus to heart.

Meanwhile, the BOP is starting to provide vaccination information on its website, and – speaking of miracles – as of last Friday, the BOP was reporting that it had received 36,650 doses of vaccine, but somehow administered 2,638 more doses than it had received. The New Testament records that Jesus fed 5,000 people with five loaves and two fishes, and had more left over than he started with. The BOP has apparently replicated that miracle.

The BOP’s detailed vaccination information is woefully incomplete. In its facility-by-facility data, the number of inoculations accounts for only a third of the doses the BOP says it had distributed. Last Friday’s numbers show 7,468 staff (20.7% of all BOP employees) and 5,751 inmates (3.8% of the population) receiving the vaccine. The data only report that vaccines have been administered in 33% of all locations, which clashes with BOP statements several weeks ago . The New York Daily News said lawyers for defendants at MCC New York told it “the vaccine’s distribution at the jail has been haphazard, with some high-risk prisoners still waiting for shots.”

vax210208Other than the miracles, it was a tough week for the BOP. First, FCI Ft Dix Warden David Ortiz, who presided over a COVID-19 explosion at that facility last fall, suddenly was relieved of duty, reassigned to the BOP Northeast Regional Office. You may recall that the BOP uses desks at its regional offices as “time-out chairs” for wardens and other management people on the outs. Last summer, for example,  the BOP sent the FCI Oakdale warden to work on a desk at an office well away from inmates.

Ortiz was “temporarily” replaced by Lamine N’Diaye, the former warden at the MCC New York, who himself was placed on desk duty at the Northeast Regional Office in 2019 while authorities investigation the death of millionaire sex offender Jeffrey Epstein. At the time, Jose Rojas, a BOP union leader and teacher at FCI Coleman, said N’Diaye should be home without pay instead of being reassigned. “I put this on the warden,” he said. “If he would have had common sense and followed policy, we wouldn’t be here discussing this.”

In Chicago, inmates filed a proposed class action suit against the BOP for conditions at MCC Chicago. The suit, Price v. Federal Bureau of Prisons, Case No 1:21-cv-00542, claims the high-rise jail’s “haphazard and insufficient” measures to contain the coronavirus pandemic led to two major outbreaks, endangering people in custody and staff. The suit alleges a lack of cleaning supplies and proper social distancing as well as a “poorly implemented and incomplete” isolation and quarantine process. Officials also allegedly turned “a blind eye” to staff who didn’t wear masks and ignored some people in custody who asked for tests.

As a result, almost 300 MCC Chicago inmates have tested positive for COVID-19, although the lawsuit claims that “the real infection rate was certainly higher” than that.

More210208BOP correctional officers at FCI Mendota sued the BOP in the Federal Court of Claims last week for an extra 25% in pay for the hours they’ve worked during the COVID-19 pandemic. Aaron McGlothin, an FCI Mendota employees union leader, said COs feel particularly strongly about the need for hazard pay because they believe the Bureau of Prisons has not taken the proper precautions to protect them.

“At some point you have to say enough is enough, you have to do what you have to do, and seek outside assistance,” McGlothin said. “If our agency took the proper precautions, we wouldn’t have to deal with this the way we have, and they owe us.”

The Associated Press last week reported that records it obtained showed that the BOP’s string of executions at FCI Terre Haute last December and January “likely acted as a superspreader events… something health experts warned could happen when the Justice Department insisted on resuming executions during a pandemic. The AP said BOP employees carrying out the executions “had contact with inmates and other people infected with the coronavirus, but were able to refuse testing and declined to participate in contact tracing efforts and were still permitted to return to their work assignments… Other staff members, including those brought in to help with executions, also spread tips to their colleagues about how they could avoid quarantines and skirt public health guidance from the federal government and Indiana health officials.”

oops211202Finally, an arrest: A federal grand jury has returned a three-count indictment charging a former BOP CO, Jimmy Lee Highsmith, with sexually abusing three female prisoners at FCI Tallahassee. Highsmith was arrested last Wednesday night. In fall 2019, Florida Sen. Marco demanded the BOP respond to newspaper reports of sexual abuse of female inmates at Tallahassee and FCI Coleman camp. In fact, Highsmith was identified nine months ago by a former FCI Tallahassee inmate as having raped her.

There’s a saying among BOP inmates that many of the COs are “only a uniform change away…” Jimmy has become the illustration for that aphorism.

New York Daily News, Ghislaine Maxwell receives COVID-19 vaccine at Brooklyn federal jail: source (February 2, 2021)

NJ.com, Warden at N.J. federal prison reassigned amid massive COVID outbreak (February 2, 2021)

Albany Times-Union, Jail’s warden reassigned (August 14, 2019)

Chicago Sun Times, Inmates file class-action lawsuit over handling of COVID-19 at downtown jail (January 31, 2021)

The Fresno Bee, California prison employees file lawsuit demanding hazard pay during COVID pandemic (February 5, 2021)

Associated Press, Records show 13 federal executions under Trump administration at Indiana prison likely acted as COVID-19 superspreader (February 5, 2021)

Associated Press, Former corrections officer accused of sexually abusing multiple inmates at Federal Correctional Institution in Tallahassee (February 4, 2021)

– Thomas L. Root

BOP Anti-vaxxers Complicate Prison Vaccine Rollout – Update for February 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.

MOST BOP STAFF ARE REFUSING COVID-19 VACCINES

vax210202You’d think that with all of the Federal Bureau of Prisons employees union belly-aching (just about all of art justified) over management fumbles in protecting staff and inmates from COVID-19, correctional officers would be jumping line to get inoculated. But in a nation where people are clamoring for a shot in the arm, at many facilities more than half of the BOP’s employees are turning down the vaccine. (Guess they don’t want Bill Gates’ microchip in their arm, but given how well Windows works on computers, what do they have to fear?)

The BOP has used up 97% of its initial allotment of vaccine, and the results cannot be what the agency hoped for. Most facilities are reporting that not more than half of BOP staff offered the vaccine has agreed to take the vaccine. As a result, inmates have been getting inoculated with vaccines being turned down by staff, reportedly about 4% of the inmate population and 21% of the staff have been vaccinated, leading to journalistic screeds such as this one decrying vaccinated those low-down convicts before honest citizens.

FCI Hazelton’s experience is typical. The facility got 660 doses of vaccine three weeks ago. Only 35% of the prison’s 800 employees agreed to receive the vaccine, with the rest of the doses – which had to be used within a short period of time – distributed to about 10% of the 3,134-inmate population.

punch210202The BOP previously planned that inmates would be offered vaccines according to their risk factors in the next distribution of the vaccine. No change to that plan has been announced, but in the last 10 days, the availability of vaccine has become problematical. Politico reported a day ago that “Biden’s team is still trying to locate upwards of 20 million vaccine doses that have been sent to states — a mystery that has hampered plans to speed up the national vaccination effort. They’re searching for new ways to boost production of a vaccine stockpile that they’ve discovered is mostly empty. And they’re nervously eyeing a series of new Covid-19 strains that threaten to derail the response… ‘It’s the Mike Tyson quote: ‘Everybody’s got a plan until they get punched in the mouth,’ said one person with knowledge of the vaccine effort.”

As of yesterday, the BOP reported 2,939 inmate COVID cases (down 18% from the week before) and 1,802 sick staff (down 11%). COVID is still present in 126 facilities. Six more inmates were reported, raising the total to 228. Incidentally, the BOP is now reporting on the number of vaccine doses it has delivered, including the number at each facility.

Vice, COVID-19 Devastated Prisons. Now Some Inside Don’t Want the Vaccine (January 29, 2021)

WLS-TV, Inmates getting COVID-19 vaccine while millions struggle to get appointment for shot (January 22, 2021)

WV News, Hazelton warden says employees, inmates vaccinated (January 30, 2021)

Politico, ‘It’s a mess’: Biden’s first 10 days dominated by vaccine mysteries (January 30, 2021)

– Thomas L. Root

Is BOP Cooking the Books on COVID Numbers? – Update for January 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.

COVID NUMBERS ARE DOWN, BUT ARE THEY RELIABLE?

COVID numbers are down 26% from a week ago, with 3,738 federal inmates in BOP and private prisons sick. The BOP staff numbers remain stubbornly high at 2,005, down only 1% from last week. Deaths are spiking, with 12 more between Jan 15 and last Friday, for a total of 220. The BOP has tested two-thirds of its inmates, with an overall positivity rate of 44%.

BOPCOVID210125The BOP continues to report that large numbers of inmates are “recovered” according to Centers for Disease Control and Prevention Guidelines, despite the fact that the number of “recovered” inmates who subsequently die of COVID keeps increasing. On Thursday, the BOP reported that Shauntae Hill, an FCI Terre Haute inmate whom it had declared “recovered” last September, tested positive for COVID December 12 – 79 days later – and died two weeks ago. Last Friday, the BOP reported that Spencer Sarver, a USP Atlanta inmate who tested positive for COVID last March – but was declared “recovered” on April 23 – never left the hospital, and died ten days ago.

BOPDeaths210125The CDC Guidelines say that “available data indicate that persons with mild to moderate COVID-19 remain infectious no longer than 10 days after symptom onset. Persons with more severe to critical illness or severe immunocompromise likely remain infectious no longer than 20 days after symptom onset.” But nowhere does the CDC say recovered people are cured, but rather only that any virus they are shedding is at a concentration at which “infectiousness is unlikely.”

James Weldon, president of the union local representing BOP employees at FCI Raybrook, last week accused the BOP of not reporting inmate and staff COVID cases after it brought in around 100 new inmates without testing them first. Weldon said the BOP never reported on the 130 inmates and 25 staff who tested positive during the peak of the outbreak two weeks ago.

The BOP reportedly failed to response to the newspaper with a comment.

judge160229The Denver Gazette reported last week that out of two dozen responses to compassionate release motions based on COVID-19 from September through December, federal judges in Colorado only approved three. Besides finding that an inmate’s health condition or COVID at the particular facility was not severe, judges commonly denied requests to those who were not over 65 or had not served at least 75% of their sentences.

In two denials filed by Senior Judge Marcia S. Krieger, she found inmates may be safer from COVID-19 in prison than outside of it, despite the fact that the BZOP infection rate is five times that in the general population. “Release from custody would not ensure that he would not contract COVID-19,” Krieger wrote in one case. “Indeed, his release into the community – to socialize, to work, to shop, etc. – could increase, rather than decrease his risk of contracting the disease.”

BOP, Inmate Death at FCI Terre Haute (January 21, 2021)

BOP, Inmate Death at USP Atlanta (January 22, 2021)

CDC, Duration of Isolation and Precautions for Adults with COVID-19 (October 19, 2020)

Adirondack Daily Enterprise, Union: Prison apathetic about COVID (January 19, 2021)

Denver Gazette, Federal judges in Colorado denied overwhelming majority of requests to release inmates for COVID-19 (January 20, 2021)

– Thomas L. Root

CARES Act Home Confinees Must Return to Prison, Trump’s DOJ Says in Parting Shot – Update for January 22, 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.

A FINAL STEAMING PILE OF LEGAL EXCREMENT AS THE TRUMP ADMINISTRATION LEAVES THE BUILDING

DOJOLC210122Under the March 2020 CARES Act, Congress gave the Director of the Federal Bureau of Prisons the authority to send inmates to home confinement at any time, despite the 6-month/10% limitation on home confinement set by 18 USC § 3624(c). The conditions set by the legislation were only two: (1) the national emergency declared because of COVID-19 had to be in effect, and (2) the Attorney General had to determine that COVID-19 was materially affecting BOP operations.

Attorney General William Barr concluded in short order that BOP operations were being affected, and that nonviolent inmates with good prison records (and US citizenship and a few other requirements) should be sent to home confinement. The BOP added its own gloss, that the inmate must have completed 50% of his or her sentence (or, for short-timers, 25% of the sentence with 18 months or less to go). By mid-April 2020, the prison-to-parlor pipeline was flowing.

snakeoil170911Since then, the BOP has trumpeted that it has sent over 18,000 inmates to home confinement. It turns out, however, that – like most BOP claims – this one is misleading, if not downright dishonest. The BOP has sent 18,112 people to home confinement in the last 10 months, but 60% of those were eligible for home confinement under 18 U.S.C. § 3624(c)(2) anyway, because they were within their last six months of their sentences (or 10%, if they were sentenced to under five years).

But this leaves about 7,245 people who were sent home who could not have been sent if not for the CARES Act. I know at least two sent home with more than 10 years of sentence left to serve. While that’s a long time to spend in a Barcalounger, nevertheless, there is no doubt that an inmate’s worst day on home confinement is better that his or her best day in prison.

There was a kerfuffle last fall, when a DOJ Attorney said in open court, almost as an aside, that once the pandemic ended, all of the federal inmates sent to home confinement would have to come back to prison.

At the time, FAMM president Kevin Ring said that he had communicated his concern that CARES Act inmates might be recalled to the White House. He said the Trump Administration assured him it would never happen.

Back then I said

but White House assertions (remember President Trump’s promised 3,000 clemencies?) have a way of being wrong. The risk of reincarceration seemed real enough that the House of Representatives included a provision in last May’s HEROES Act that no one “granted placement in community supervision, termination of supervision, placement on administrative supervision, or pre-trial release shall be re-incarcerated, placed on supervision or active supervision, or ordered detained pre-trial only as a result of the expiration of the national emergency relating to a communicable disease.

I generally like being right, but not this time…

Although the end of the pandemic appears to be months away (former basketball point guard and rockstar doctor Anthony Fauci said yesterday that “if the country can get over the hurdle of vaccine hesitancy and reach a 70% to 85% uptake, Americans can expect normalcy in the fall”), the Trump Administration was seemingly unable to resist breaking one final promise.

Last week, the DOJ Office of Legal Counsel issued an opinion entitled “Home Confinement of Federal Prisoners After the COVID-19 Emergency,” concluding that

the CARES Act authorizes the Director of BOP to place prisoners in home confinement only during the statute’s covered emergency period and when the Attorney General finds that the emergency conditions are materially affecting BOP’s functioning. Should that period end, or should the Attorney General revoke the finding, the Bureau would be required to recall the prisoners to correctional facilities unless they are otherwise eligible for home confinement under 18 U.S.C. § 3624(c)(2). We also conclude that the general imprisonment authorities of 18 U.S.C. § 3621(a) and (b) do not supplement the CARES Act authority to authorize home confinement under the Act beyond the limits of section 3624(c)(2).

kick210122Ohio State University law professor Doug Berman said yesterday in his Sentencing Law and Policy blog that “this opinion is certain contestable, the new Biden Justice Department could reconsider it and a court might reject it, and we are surely a long ways from reaching a post-pandemic world.” Kevin Ring denounced the opinion as “one last kick in the groin from the Trump Justice Department,” calling it “is a poorly reasoned piece of cruelty that could make families worry unnecessarily.”

I consider it very unlikely that Biden’s new Attorney General, Merrick Garland, is going to rescind Barr’s finding “that the emergency conditions are materially affecting BOP’s functioning” any time soon. Although the pandemic emergency declaration expires in March, I suspect Joe is more likely to invite Donald Trump over to the White House for a drink than he is to end the emergency. There’s plenty of precedent. At the time the COVID emergency was declared, 60 national emergencies had been declared since the National Emergencies Act was enacted 45 years ago, and 31 of them (including the emergency are still in effect, having been renewed repeatedly. I figure the pandemic emergency to last for another nine months at least.

As I noted above, the House HEROES Act last May sought to plug the CARES Act hole that left home confinees in a non-permanent status. HEROES died a lonely death on January 2nd, but the new 117th Congress can fix the home confinement problem simply enough. Even if Congress does not, the President could grant conditional clemency or district courts could grant compassionate release to keep these folks on home confinement.

Even if it doesn’t, the Biden DOJ can walk back the OLC opinion (and the reasoning is shaky enough that there is plenty of room for reinterpretation) without much difficulty.

timecover2310122There is scant policy justification for returning people on home confinement to prison, unless sheer meanness is now an Administration goal. (Sheer meanness is a criterion more at home in the last Administration, the one that issued the OLC opinion, than with the new people in charge). The BOP has first determined that inmates it proposes sending to home confinement pose little risk to public safety but high risk of COVID, meaning that the CARES Act cohort includes a lot of older and sicker folk. They’re the ones, unsurprisingly who cost the BOP the most to care for. And the lower BOP prisoner population (a drop of 12.5% in a year) has eased the burden the BOP faces from staff shortages. Because the BOP has always had the discretion to return these persons to prison for misconduct, there’s no compelling public safety or cost justification for sending everyone back to prison after the pandemic is over.

In fact, there was probably no compelling need for the outgoing Administration to drop this opinion on the way out the door, unless of course the Trump appointees wanted to create as much legal vandalism for the Biden DOJ to clean up as possible.

Dept. of Justice, Memorandum Opinion for the General Counsel of the Federal Bureau of Prisons (January 15, 2021)

Sentencing Law and Policy, Notable OLC opinion on “Home Confinement of Federal Prisoners After the COVID-19 Emergency” (January 21, 2021)

Forbes, Department Of Justice Lays Plans For Federal Inmates On Home Confinement To Return To Prison (January 21, 2021)

– Thomas L. Root

BOP’s Good and Bad At COVID Management – Update for January 19, 2021

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

COVID – BOP GETS PAT ON BACK, KICK IN PANTS

pat-on-back210119In a self-congratulatory press release issued late last week, the BOP said it has been commended by Operation Warp Speed – the Trump COVID-19 vaccine program – for having been the most efficient agency in the entire government at administering COVID vaccine. According to the CDC, the BOP has used 97% of the doses it has received.

Of course, it helps that the BOP has a captive audience. Not among staff so much: in a troubling report, the BOP said only half of its staff offered the vaccine have taken it. But the inmates… that’s another story. Doses not used by staff at the locations receiving it – about 68 of 122 facilities so far – have been offered to inmates using CDC priorities, and there are plenty of takers. The BOP so far has administered over 17,000 doses of the vaccine, a first dose to about 7,600 staff and 5,500 inmates, and a second dose to about 1,000 staff and 1,100 inmates. In other words, only 24% of staff and 4% of inmates have been vaccinated so far.

As of last Thursday – the last day the BOP bothered to release numbers – 4807 inmates and 2049 staff were reported to be sick with COVID. The BOP has tested two out of three inmates at least once, with a positivity rate that keeps climbing. Currently, 43% of inmate tests come back positive.

Death took no holiday last week as an additional eight inmates died last week. Significantly, two of the deaths – at FCI Jesup and FCI Memphis – were of inmates the BOP has previously declared to be “recovered.”  The BOP is quite quick to declare inmates “recovered” when 10 days pass after a positive teas. The declaration is based on CDC guidance, the BOP says, but is often misapplied, with the agency ignoring any continuing symptom other than a fever. 

FCI Fort Dix, where 321 inmates are still reported to have the virus, is set to get the COVID-19 vaccine next week, according to NJ Advance Media. BOP case management coordinator James Reiser told a court on Wednesday that the prison expects to receive COVID-19 vaccine on Jan 19. It is unclear how many doses the prison will initially receive, Reiser said.

kickinpants210119New Jersey Senators Bob Menendez and Cory Booker and Congressman Andy Kim led members of the New Jersey congressional delegation last week in urging the DOJ Inspector General to expand his ongoing investigation into the BOP COVID-19 response to include its handling of the Fort Dix outbreak.

Finally, a kick in the pants: the DOJ Inspector General last week reported that last April, BOP employees at FCC Coleman were threatened with discipline if they wore personally-acquired masks , and sometimes were sent home on sick leave for wearing such coverings. One complainant reported that a supervisor had said wearing a mask would “scare the inmates,” the OIG report said.

BOP, COVID-19 Vaccination Efforts Commended (January 16, 2021)

New Jersey Advance Media, N.J. prison with worst COVID-19 outbreak in the country set to get vaccine next week (January 13, 2021)

InsiderNJ, Menendez, Booker, Kim Lead NJ Delegation Call for IG Probe into COVID-19 Outbreak at Fort Dix (January 15, 2021)

Orlando Sentinel, Federal prison in Central Florida banned masks for staff as pandemic began, report says (January 14, 2021)

– Thomas L. Root

Risk of COVID Interrupts Death For A Bit – Update for January 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.

HOW BAD IS COVID?

Despite the 11th-hour Supreme Court petitions, the celebrity protests, the scathing editorials, nothing has stopped the Trump Administration’s headlong rush to execute federal inmates. Thirteen have been executed this century, 10 of them in the last six months.

Then came COVID.

President-elect Joe Biden has promised to halt the lethal injections, but three more were scheduled to die this week until last Tuesday, when SD Indiana Judge Jane Magnus-Stinson ruled that the federal government’s poor management of the previous 10 executions “has created a substantial risk” that other inmates and staff may contract the virus.

The judge got promptly overruled by higher-ups, so the death march continued with killing Lisa Montgomery two days ago. The government plans on doing in two more inmates between today and next Wednesday at noon, when the new President stops it.

executionwoman21011For the BOP to be able to carry out the remaining executions, the judge ruled, it has to create a contact log that tracks staff who come into close contact with others during the execution process. For 14 days after the execution, execution staff have to take daily rapid COVID-19 tests, and anyone who produces a positive test must go through contact tracing. “The defendants have touted the availability of testing but have chosen not to utilize rapid testing of staff and visitors who enter prison grounds,” the judge wrote. “Most disconcerting, the defendants represented to the Court that contact tracing would occur after any BOP staff member involved in the executions tested positive. This has not been the case—and the Court finds the failure was not by accident but by design.”

COVID might have been stymied at stopping the intentional killing, but it remains adept at bringing death to inmates. The number of dead inmates hit 198 last Friday. Inmate COVID cases fell 25% between Dec 31 and last Wednesday, but then jumped back up to 6,227 as of Friday. They started falling again (as the BOP continues to declare anyone who tested positive 10 days ago to be cured), settling at 5,043 yesterday.

Ominously, BOP staff cases continue to climb. The number crossed  2,000 for the first time ever last week, and stood at 2,107 yesterday. If the staff keeps getting sick, more inmates invariably will contract it as well.

BOPCOVID210113

As of yesterday, FCI Ft Dix reported 461 cases, with Lexington (444 cases), Butner Medium II (208 cases) and nine other facilities with more than 100 cases each, with 19 more having 50 or more cases.

The BOP’s vaccine program is not going all that well. Government Executive reported last week that the Bureau “has received just 12,800 vaccine doses, but has already used 57% of those.” The BOP has distributed the vaccine to only 31 of its roughly 150 facilities. COs and health care workers are receiving the vaccine in the BOP’s first phase of distribution, although some inmates have gotten vaccines when stocks remained after all employees who elected to get vaccinated had been served. Only about “half of staff at each of the 31 facilities receiving vaccines have so far been vaccinated, according to Justin Long, a bureau spokesman. Inmates will begin receiving doses when more become available under a plan developed by the Trump administration’s Operation Warp Speed, Long said.”

Meanwhile, a national debate is brewing over whether inmates should be inoculated before the general population. Health officials say inoculating prison employees without giving the shot to prisoners won’t help stop the spread. “It doesn’t make sense to vaccinate workers but not vaccinate the people they are charged with protecting,” said Wanda Bertram, a spokeswoman for the Prison Policy Initiative, which is advocating that staff and inmates receive the vaccine.

nothing170125But a typical reaction came from Colorado Gov. Jared Polis, a Democrat, who said last month, “There’s no way it’s going to go to prisoners before it goes to people who haven’t committed any crime.”

Meanwhile, the Minnesota ACLU accused FCI Waseca staff of showing deliberate indifference to inmates during a massive COVID-19 outbreak in a hearing last Wednesday. The ACLU represents a plaintiff class of inmates seeking a temporary injunction to release many Waseca inmates to home confinement to curb the spread of the outbreak.

ACLU lawyer Clare Diegel called it a “drastic remedy” but necessary because of “terrifying” conditions at the prison. But Erin Secord, an AUSA representing the BOP, insisted the prison had taken numerous steps to protect inmates, the infections had been quelled and the court lacked jurisdiction to release prisoners. She said the suit should be dismissed.

control200511The president of a union representing employees at FCI Williamsburg in South Carolina last week blamed prison leadership for decisions that led to skyrocketing COVID-19 cases there. ”They made some changes on the process of what we were doing… that allowed COVID to actually walk into the institution,” American Federation of Government Employees’ Local 525 President Stephen Pinckney said. “From there, it spread like wildfire once it got in.”

Pinckney alleged that the process of screening people entering the complex to determine whether they had potential symptoms of COVID-19 symptoms was shifted from outside the facility to inside in early December. “I really would like to see our executive staff removed for one thing because they are more concerned right now on the financial side of the institution that they are about the health and wellbeing of staff there,” Pinckney said.

Indianapolis Star, Terre Haute executions paused by judge until COVID-19 measures are instituted (January 8, 2021)

Government Executive, Federal Agencies Have Distributed 200K Coronavirus Vaccine Doses So Far (January 4, 2021)

Wall Street Journal, As Covid-19 Surges in Jails, Guards Want Vaccine Early (January 4, 2021)

WCSC-TV, Charleston, South Carolina, Prison workers union calls for action on COVID-19 outbreak at FCI Williamsburg (January 8, 2021)

– Thomas L. Root

Where Did The HEROES Go? (And Other Stories That Puzzle Inmates) – Update for January 4, 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.

DEAD HEROES

deadheroes210104Last May, the House of Representatives passed the HEROES Act, intended to be the second coronavirus stimulus. The bill, which included in its $3 trillion giveaway a number of criminal justice changes (like letting eligible elderly offenders get home confinement after two-thirds of their good-time adjusted sentences, instead of gross sentences), was promptly denounced by Republicans appalled at its price tag and then ignored by the Senate.

Eight months later, I am still getting questions about it, mostly from people who may have been sleeping in the back of the classroom during high school government class.

A bill passed by the House must then be passed by the Senate and then signed by the President in order to become law. In the case of HEROES, the Senate refused to consider the bill. Rather, the Senate passed the HEALS Act in response to HEROES, a bill that was then immediately not considered by the House.

sleep210104What finally happened last month was that the Senate and House worked out a compromise bill that was neither HEROES nor HEALS. The compromise bill included no sentencing provisions at all, a fact that seems not to detain prisoners at all. One inmate wrote me last weekend, asking me to confirm the rumor that § 205 of the stimulus bill gave elderly offenders the home confinement adjustment they sought. Alas, § 205 is entitled “Pipeline Safety Management Systems,” a provision of interest to elderly offenders only if they’re in the natural gas transmission business.

Another inmate asked me whether HEROES might still pass in January or February. Remember this from high school civics, boys and girls: every Congress lasts two years, and ends on January 3. The 116th Congress ended yesterday, and the 117th Congress starts its two-year run today. When a two-year Congress ends, any bill not passed by both the House and Senate is dead.

That means the sentencing changes contained in HEROES will have to be introduced all over in a new bill.

caresbear210104Someone else wondered how long the BOP’s home confinement authority will last under the CARES Act. There are three answers to that. First, the BOP’s authority lasts until 30 days after the COVID-19 national emergency declared by Trump ends. The National Emergencies Act requires any emergency to end one year after it is declared, unless extended by the President. Since some national emergencies (such as with respect to Iranian assets) have continued for four decades. The current COVID emergency ends in March, but there is little doubt Biden will extend it.

Second, the BOP’s authority only lasts as long as the Attorney General’s determination that the emergency conditions are “materially affect[ing] the functioning of the BOP.” Attorney General Barr made that determination last April, but he or the new AG could withdraw the finding at any time.

Finally, the CARES Act lets the BOP Director put prisoners in home confinement “as the Director determines appropriate.” This provision delegates virtually unreviewable power to the BOP. If the Director decided tomorrow that he had sent all the people he needed to send, he could pull the plug.

A year ago, the BOP population stood at 175,858 inmates. As of last week, the number had fallen 13.5% to 152,184. That’s a 31% drop from six years ago.

No one knows when the BOP will no longer place prisoners in home confinement. But we’re much closer to the end than we are to the beginning.

HEROES Act, H.R. 6800 (May 15, 2020)

HEALS Act, S.4318 et al. (July 27, 2020)

Section 205, Consolidated Appropriations Act, 2021 (December 27, 2020)

Section 12003(b)(2), CARES Act, H.R. 748 (March 28, 2020)

Sentencing Law and Policy, Federal prison population closes out 2020 at new modern low of 152,184 according to BOP (December 31, 2020)

– Thomas L. Root