Tag Archives: BOP

DOJ Kicks Post-CARES Act Can Down the Road (A Little) – Update for April 7, 2023

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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 FOX SHOULD GUARD HOME CONFINEMENT HENHOUSE, DOJ SAYS

fox230131Remember when the Trump Administration made that minute-to-midnight announcement that the end of CARES Act home confinement would mean that all those prisoners placed at home would have to return to prison?

Thankfully, the flawed Dept of Justice Office of Legal Counsel opinion was later withdrawn by the Biden Administration. But when a new OLC opinion supplanted the old, the reversal wasn’t total. Rather, DOJ said that some might return, but that would be governed by rules yet to be promulgated.

(Explainer: Under 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.)

As an old Administrative Procedure Act hand, I was relieved. “Rules” suggested regulations written after a classic 5 USC § 553 notice-and-comment formal rulemaking. Everyone could argue the merits and demerits of whatever standards were proposed, and the Bureau of Prisons would subsequently be compelled under the Accardi doctrine to follow the rules (something the BOP too often ignores where its own informal rules, policies and program statements are involved).

Last Tuesday, the rulemaking announced last June ended with a detailed report and a new subpart to the BOP’s delegation rule, 28 CFR §0.96.  The new rule, which will affect slightly more than 3,400 people (because the agency is still sending people to CARES Act home confinement for another month), adds a subpart (u), which, alas, contains no substantive limitation on the BOP’s discretion. That, we are promised, is to come.

can230407The can just got kicked down the road.

DOJ says the final rule, reduced to its essence, provides that “the [DOJ] and the [BOP] will work together to develop guidance to explain objective criteria the Bureau will use to make individualized determinations as to whether any inmate placed in home confinement under the CARES Act should be returned to secure custody. Providing the Bureau with discretion to determine whether any inmate placed in home confinement under the CARES Act should return to secure custody will bolster the Bureau’s ability to efficiently manage its resources and nimbly address changing circumstances in the community, in relation to the needs and profiles of individual inmates.”

The BOP? Nimble? If that’s the case, Joe Biden can compete against Simone Biles.

nimble230407Still, DOJ’s report acknowledges that “under typical circumstances, inmates who have made the transition to home confinement would not be returned to a secure facility absent a disciplinary reason. This is because the typical purpose of home confinement is to allow inmates to readjust to life in the community. Removal from the community of those already making progress in home confinement would frustrate this goal, and the widespread return of prisoners to secure custody without a disciplinary reason would be unprecedented and out of step with the reentry-specific goals of home confinement, as mentioned throughout this final rule.”

(My emphasis, not the report’s).

Reuters interpreted the report as directing that “[t]he BOP will still be able to impose ‘proportional and escalating sanctions,’ including a return to prison, on inmates who commit infractions.”  But the report does not exactly say that, and the contents of the report itself do not limit the BOP’s management of CARES Act home confinees at all.  Any such limitations are coming – if at all – in subsequent policy memos and program statements.

Two sets of fun facts are contained in the DOJ report adopting the rule. First, as Ohio State University law professor Doug Berman noted in his Sentencing Law and Policy blog, between March 26, 2020, and January 23, 2023, the BOP placed 52,561 inmates in home confinement. As of January 23, there were 5,597 inmates in home confinement, and 3,434 of those were CARES Act people.

The second has to do with money. Contrary to the oft-repeated inmate trope that the BOP makes money by keeping inmates locked up (something that only be believed if you simultaneously pay your Flat Earth Society dues), keeping people in prison is expensive. The DOJ noted:

Moneyspigot200220Supervision of inmates in home confinement is also significantly less costly for the Bureau than housing inmates in secure custody. In Fiscal Year (“FY”) 2019, the cost of incarceration fee (“COIF”) for a Federal inmate in a Federal facility was $107.85 per day; in FY 2020, it was $120.59 per day. In contrast, according to the Bureau, an inmate in home confinement costs an average of $55.26 per day—less than half the cost of an inmate in secure custody in FY 2020.

Only the government could manage to spend $55.00 a day to keep someone in their own house eating their own food and paying their own bills. Anyone wonder how we have a national debt of over $31 trillion?

Office of the Attorney General, Department of Justice,
Home Confinement Under the Coronavirus Aid, Relief, and Economic Security (CARES) Act (88 FR 19830, April 4, 2023)

Sentencing Law and Policy, Justice Department formally gives BOP discretion to decide who moved to home confinement during pandemic will be returned to federal prison (April 4, 2023)

Reuters, US rule to allow some inmates to stay home after COVID emergency lifts (April 4, 2023)

– Thomas L. Root

DOJ Confirms: BOP COVID Numbers Were Wacky – Update for March 29, 2023

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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.

IG REPORT ON BOP COVID RESPONSE FINDS NUMBERS WERE JUST AS FUNNY AS EVERYONE SAID THEY WERE

numbers180327The Dept of Justice Office of Inspector General released a report last week on the BOP’s COVID response, containing little of any surprise to those who lived through it (especially when it came to the Bureau’s incomplete and misleading daily COVID data).

A common complaint by the media (including this blog) during the pandemic related to the BOP’s manipulation of COVID numbers to make the pandemic look less pervasive in the prison system. The BOP reported on the total number of inmates who had tested positive for COVID at a given institution and system-wide, but sometimes the number actually fell from day to day. It turned out the BOP would deduct from the total inmates who had been released, as though their COVID cases never counted because they had never been there.

Complaints at the time that the BOP was cooking the books fell on deaf ears. But now, the IG has placed its seal of disapproval on the BOP’s voodoo medical accounting:

[BOP COVID] active case counts do not include inmates or staff who recovered or died, and the recovered case counts do not include inmates or staff who die, inmates who have subsequently been released from BOP custody, or staff who have left BOP employment. These omissions mean that the BOP’s publicly posted data does not represent the full extent of cumulative COVID-19 cases among inmates and staff over the course of the pandemic. Further, the BOP website does not mention that the staff and inmate recovery data presented excludes inmates who left BOP custody or staff who left BOP employment, which could lead stakeholders to draw incorrect conclusions about the BOP’s data.

crazynumbers200519The IG noted that “similar issues exist with the BOP’s publicly posted data on testing, which also includes only inmates currently in BOP custody” and which omitted many local tests. BOP vaccination data was also flawed: “BOP does not publish data that allows stakeholders to see the proportion of vaccinated individuals at any of the facilities, as the published data displays only the cumulative number of BOP-administered vaccinations completed at each facility.”

In fact, this blog noted that the BOP’s misleading cumulative numbers had some facilities showing that well more than 100% of the inmate population had been vaccinated. The IG dryly observed that such reporting “could lead stakeholders to draw incorrect conclusions.”

No kidding.

The Inspector General also criticized the BOP’s opaque communications on CARES Act home confinement. The Report “observed that the BOP’s communication with the public regarding home confinement only restated the criteria in the Attorney General’s memoranda without clarifying them in plainer language or describing how the BOP was interpreting or implementing the criteria. For example, while the BOP provided a Frequently Asked Questions section on home confinement on its public website during the pandemic, the section did not mention the additional time-served criteria the BOP was using to determine eligibility for home confinement. Clearly stating to the public how and why the BOP was implementing and prioritizing its expanded home confinement authorities could have helped the BOP be more transparent with inmates and other stakeholders at a time of high stress and uncertainty.”

DOJ Inspector General, Capstone Review of the Federal Bureau of Prisons’ Response to the Coronavirus Disease 2019 Pandemic (March 20, 2023)

Govt Executive, Here’s How the Prisons Agency Fared During the Pandemic (March 21, 2023)

– Thomas L. Root

Friday Couldn’t Come Soon Enough – Update for February 24, 2023

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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.

TOUGH WEEK FOR THE BOP

Bad news came in threes for the Federal Bureau of Prisons last week.

badweekA230224First, the BOP announced it is closing the USP Thomson Special Management Unit – described by The Marshall Project as sort of a “double solitary” detention unit for violent inmates – after adverse reports have circulated for months about inmate deaths, suicides and reported sexual harassment by staff and against staff..

The 350 SMU prisoners will be transferred to other prisons. They had come to the Thomson SMU (USP Thomson sits on the Illinois side of the Mississippi River about 125 miles due west of Chicago) after committing disciplinary infractions in facilities around the country, the New York Times reported.

Bureau officials “recently identified significant concerns with respect to institutional culture and compliance with BOP policies” at the high-security facility, which houses about 800 inmates, Randilee Giamusso, a bureau spokeswoman, wrote in an email.

“We believe these issues are having a detrimental impact on facility operations, and the BOP has determined that there is a need for immediate corrective measures,” she added.

badweekB230224Second, on February 14, the U.S. Court of Appeals for the Federal Circuit ruled that BOP employees cannot sue over the government’s denial of hazard pay benefits in connection with their work during the COVID-19 pandemic.

The en banc decision held that under existing Office of Personnel Management regulations governing hazard pay, only federal workers enlisted to work in a laboratory setting with “virulent biologicals” are entitled to enhanced pay for dangerous work not included in their job description.

FCI Danbury workers sued in 2020, claiming they were entitled to hazard pay because they worked in close proximity to inmates infected with COVID-19 and were not provided sufficient personal protective equipment.

badweekC230224Third, the Reason Foundation, which skewered the BOP for reported medical neglect at FCI Aliceville, sued the Bureau under the Freedom of Information Act last week for records about whether women who died at Aliceville and FMC Carswell received adequate medical care.

Reason Foundation, a nonprofit that publishes Reason magazine, is seeking medical reviews of in-custody deaths in two federal women’s

Reason filed a FOIA request with the BOP in May 2020 for inmate mortality reviews at Aliceville and Carswell.

New York Times, Bureau of Prisons Is Closing Troubled, Violent Detention Unit in Illinois (February 14, 2023)

Government Executive, Federal Prisons Employees Aren’t Entitled to COVID Hazard Pay, Appeals Judges Rule (February 16, 2023)

Reason, Reason Files FOIA Lawsuit Against Bureau of Prisons for Inmate Death Records (February 17, 2023)

– Thomas L. Root

Where Underperformance is ‘Success’ – Update for February 16, 2023

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

BIDEN TOUTS ‘SUCCESSES’ BEFORE SOTU, BUT FAILS TO DELIVER IN SPEECH

success230216The White House touted its policies and accomplishments — including marijuana pardons, drug sentencing reform, harm reduction and enhanced enforcement for fentanyl — ahead of last week’s State of the Union speech, but then proceeded to say nothing in the speech itself about drug policy reform.

The White House promised in a factsheet that the president would “highlight progress” on criminal justice issues during the speech and included a section that directly discussed tackling the “failed approach to marijuana and crack cocaine.” But nothing was said during SOTU about it.

And little wonder. The Biden Administration’s record is one of ‘overpromise, underperform.’ Case in point? For all of the White House hand-wringing about the adverse effect on minorities of the statutory sentencing penalty for crack cocaine being much greater than powder cocaine, the EQUAL Act collapsed due to Senate wrangling at the end of the last Congress.

ineffectiveleaders230216Marijuana reform? Is that what one calls grant pardons to people who aren’t in prison and have convictions for simple pot possession? Or is that one calls the MORE Act, which breezed past the House last session but died in the Senate because Biden couldn’t corral members of his own party who wanted to tinker with it?

President Biden – an old hand at Senate procedure himself – could not get two bills passed the Senate when both had overwhelming support.

successline230216Is this what success looks like?

The Fact Sheet says “the Safer America Plan calls on Congress to end once and for all the racially discriminatory sentencing disparity between crack cocaine and powder cocaine offenses — as President Biden first advocated in 2007 — and make that change fully retroactive. This step would provide immediate sentencing relief to the 10,000 individuals, more than 90 percent of whom are Black, currently serving time in federal prison pursuant to the crack/powder disparity. As an initial step, the Attorney General has issued guidance to federal prosecutors on steps they should take to promote the equivalent treatment of crack and powder cocaine offenses, but Congress still needs to act….”

And Biden needs to lead, not just posture.

leaders230216Biden’s pardon proclamation, which affected several thousand people who’ve committed federal cannabis possession offenses but not a single one in prison, “lifts barriers to housing, employment, and educational opportunities,” the Fact Sheet boasted.

A White House official said Thursday that Biden promises that “every jail and prison across the nation can provide treatment for substance use disorder.” By this summer, he said, the BOP will ensure that each of its 122 facilities are equipped and trained to provide in-house medication-assisted treatment.”

White House, FACT SHEET: The Biden-⁠Harris Administration’s Work to Make Our Communities Safer and Advance Effective, Accountable Policing (February 6, 2023)

Marijuana Moment, White House Touts Biden’s Marijuana Pardons In Preview of State of The Union Speech (February 7, 2023)

WHIO-TV, Biden wants to make opioid antidote as widely available as ventilators, drug official says (February 9, 2023)

– Thomas L. Root

BOP’s Got Nowhere to Go But Up – Update for January 3, 2023

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

THE BOP’S NEW YEAR RESOLUTIONS

peters220929Director Colette Peters has been at the Bureau of Prisons now for five months. As she begins her first complete calendar year at the agency, she’s not lacking for material when she compiles a list of new year resolutions.

Starting my ninth year of writing about the BOP – and being an average joe who is happier suggesting resolutions to other people than I am adopting resolutions of my own – I have some suggestions for Director in the unlikely event her list is too short.

(1) Change the Culture: The BOP has nowhere to go but up. Last year, the Partnership for Public Service‘s 2021 rankings of the best places to work in the federal government ranked the BOP in 431st place. This was out of 432 agencies. The BOP ranked dead last in 8 of 15 categories, including “effective leadership,” “innovation” and “teamwork.”

BOPad230103(2) Hire people: Walter Pavlo observed last week that “hiring new staff in this environment is difficult.” National Council of Prison Locals president Shane Fousey called it, “a staffing crisis of epic proportions.” Staffing issues lead to inconsistent and nonexistent programming, poor healthcare, loss of opportunities for sentence credit and community confinement, and institutional safety issues.

Of course, you cannot hire the people you need to work at an agency that is feeding at the bottom of the federal employment hierarchy.  No leadership, no teamwork, no innovation… no employees.

Just last week, Pavlo wrote that an FCI Miami inmate died choking on his own blood while in a COVID quarantine. His cellmate (apparently, quarantine was in the SHU), pounded and screamed for help for 90 minutes before a CO – who was responsible for multiple housing units, came along for count. Kareen Troitino, the local CO union president, said of the incident, “As a cost savings initiative, the Agency is jeopardizing lives by forcing one officer to supervise two units. This loss of life would have never happened if we had one officer in each building as we had in the past.”

(3) Clean Up Internal Investigations: Last month, the Senate Permanent Committee on Investigations found that BOP employees had abused female prisoners in at least 19 of the 29 federal facilities over the past decade. In June 2021, the Dept of Justice revealed that as of 2018, inmates reported 27,826 allegations of sexual victimization, or a 15% increase from 2015. Of the 27,826 allegations, over half were staff-on-inmate sexual abuse. The BOP has over 8,000 internal affairs misconduct allegations that haven’t been investigated.

SIS230103The misconduct ranges from BOP leaks and lies that placed Whitey Bulger in general population at USP Hazelton (where he survived for under 12 hours) to ”corruption at the US Penitentiary Atlanta in Georgia to the Dept of Justice’s failure to count almost 1,000 deaths in custody across the country, to abusive and unnecessary gynecological procedures performed on women in Dept of Homeland Security custody,” according to Sen. Jon Ossoff (D-GA).

(4) Use the Tools Congress Gave You: Stephen Sady, Chief Deputy Federal Public Defender for the District of Oregon, recently wrote in the Federal Sentencing Reporter that the Sentencing Commission should fulfill its statutory obligation to make recommendations regarding correctional resources and programs. He told Walter Pavlo that “the BOP has failed to adequately implement critical legislation to improve the conditions of people in prison” and since the BOP hasn’t acted, the Sentencing Commission should.

The BOP could address staff shortages and morale problems by getting more people to home confinement, halfway house and early release with the need for USSC oversight, Pavlo also suggests the BOP could expand eligibility and availability of RDAP sentence reductions, “eliminate computation rules that create longer sentences… Implement broader statutory and guideline standards to file compassionate release motions any time extraordinary and compelling reasons exist… [and f]ully implement the First Step Act’s earned time credit program.’ Pavlo notes that “[n]o new legislation would be required for any of these reforms.”

nothingtosay230123(5) Practice Openness: There’s an old admonition about not picking a fight with someone who buys ink by the barrel. It’s not so much ink these days, but a blemish on Peters’s honeymoon as director is the BOP’s continued awkward of the Ft. Worth Star-Telegram’s questions about allegations of systemic abuse at the women’s FMC Carswell.

Although the Star-Telegram rated its reports of Carswell mismanagement and misconduct as one of its most important stories in 2022, the newspaper complained again this week that BOP “administrators have declined interview requests, given blanket statements in answer to questions and failed to provide detailed plans about how the Bureau of Prisons intends to address the problems.”

Associated Press, Biden signs bill forcing the federal Bureau of Prisons to fix outdated cameras (December 27, 2022)

Partnership for Public Service, 2021 Best Places to Work in the Federal Government rankings

Forbes, A Federal Public Defender Challenges U.S. Sentencing Commission To Help Fix The Bureau Of Prisons (December 28, 2022)

Forbes, Federal Inmate Dies Choking On His Own Blood While Locked In Cell At FCI Miami (December 29, 2022)

Amsterdam News, Senate committee finds widespread employee on inmate sex abuse in federal prisons (December 26, 2022)

Business Insider, Inside the federal West Virginia prison where gangster Whitey Bulger was beaten to death (December 31, 2022)

Ft Worth Star-Telegram, Fort Worth’s biggest stories of 2022: What will you remember most about this year? (December 31, 2022)

– Thomas L. Root

BOP Relents on FSA Credit Takeaway With “Grace” – Update for November 21, 2022

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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.

FSA-ELIGIBLE INMATES HAVE REASON TO BE THANKFUL (EVEN WHILE REMAINING A BIT CONFUSED)

Responding to mounting criticism about the Bureau of Prisons’ messy implementation of the First Step Act’s earned-time credits (ETCs), the BOP last week finally rolled out a program statement articulating its ETC policies.

firststepB180814For those just tuning in, the First Step Act – passed in December 2018 – established a program in which federal inmates could earn credits for successfully completing programs that were designed to reduce recidivism or participating in “productive activities” that are linked to resulting in less recidivism. Those credits (called “FSA credits” [First Step Act credits]) or “FTCs” [“Federal Time Credits) or “ETCs”) could be used by prisoners to reduce their sentences by up to 12 months or earn more time in halfway houses or home confinement. Although disrupted by the COVID pandemic and chronic staffing shortages, the BOP has been implementing the ETC program in fits and starts.

The latest snafu came in the implementation of a computer system to automatically calculate each prisoner’s ETCs (“Auto-Calc”). The system – planned for August 1 but actually launched the last week of September – automatically rescinded a lot of ETCs already granted, mostly because inmates had not completed online “needs assessment” surveys a year or more before, “surveys” that neither they nor the staff knew were mandatory in order to earn ETCs.

oddcouple210219Earlier last week, Senators Richard Durbin (D-IL), chairman of the Senate Judiciary Committee, and Senator Charles Grassley (R-IA), ranking Republican on the Committee, jointly wrote to Attorney General Merrick Garland criticizing the BOP for (1) Auto-Calc’s having rescinded previously-awarded ETCs for some prisoners; (2) setting an arbitrary rule that the BOP would stop applying ETCs to the up-to-12 months’ sentence reduction when inmates are 18 months from the door; (3) not granting ETCs to people in halfway house and home confinement; and (4) failing to clean up the PATTERN risk assessment tool to address “unjustified disparities that have arisen.”

The BOP responded to Durbin and Grassley with alacrity (a sentence I never thought I’d write). As noted, when Auto-Calc came online, many prisoners who had seen their release dates move up due to award of ETCs months before suddenly lost some or all of their time because they had not completed online needs assessment surveys in 2020 and 2021. Of course, the BOP never told inmates that completion was mandatory if inmates wanted to earn credits. The BOP itself admitted that nearly half of staff interviewed for a March report indicated no familiarity with, or declined comment on, the needs assessment process and FSA incentives policies,” according to Forbes magazine.

In a press release issued Friday, the BOP said, “With the automation, some inmates noticed their time credit balance decreased due to incomplete needs assessments and/or declined programs. This policy includes a grace period, available until December 31, 2022, for inmates who have not completed all needs assessments or who have declined programs to try to address these issues. Beginning January 1, 2023, any incomplete needs assessments or any declined to participate codes will lead to the inmate not earning FTCs in accordance with the federal regulations.”

grace221121So people in federal custody now have until New Year’s Eve to figure out what needs assessments they “failed” to complete and to get them done.

The “grace period” policy is not written into the new Program Statement, suggesting that it is an 11th-hour change. Its absence from the Program Statement is a little worrisome: no one relishes going to court to enforce the terms of a press release.

Although the Program Statement doesn’t say anything about “grace” as such, it does contains a lot:

•   Every eligible prisoner with a low or minimum PATTERN score will receive a conditional projected release date based on the maximum number of ETCs he or she can earn during the sentence.

•   Prisoners remain eligible for ETCs even those locked up in the Special Housing Unit, unless they are in disciplinary segregation.

•    Productive activities have been defined in greater detail. Besides the “structured, curriculum-based group programs and classes” already defined in the First Act Approved Programs Guide, the new Program Statement provides examples such as “recreation, hobby crafts, or religious services,” visitation, ACE classes, institution work programs, community service projects, and even participation in an FRP plan.

The Program Statement provides little clue as to who determines which unstructured activities will count as “productive activities.” It only says, “Additional groups, programs, classes, or unstructured activities may be recommended to assist the inmate in establishing positive institutional adjustment and involvement in pro-social activities. The inmate’s risk level, needs assessment results, and program recommendations will be documented on the inmate’s Insight Individualized Need Plan, and the inmate will receive a copy.”

That suggests the BOP line employees will determine what unstructured programs will count, but it does not explicitly say that. The omission provides an excellent opening for confusion and unwarranted denial of ETC credit as managers at 122 separate BOP facilities define what is a productive activity in 122 different ways.

•  The Program Statement says “inmates with unresolved pending charges and/or detainers may earn FTCs, if otherwise eligible, but “they will be unable to apply them” to sentence reduction or halfway house/home confinement “unless the charges and/or detainers are resolved. An inmate with an unresolved immigration status will be treated as if he/she has unresolved pending charges with regard to the application of FTCs.”

So good news here: The BOP has consistently been defining inmates with detainers as being ineligible to even earn ETCs. Now, detainers will no longer prevent people from earning ETCs. But for some reason, the BOP continues to refuse to use ETCs for sentence reduction when people have detainers.

• The Program Statement makes it clear that inmates with medium/high PATTERN scores may earn ETCs, but that they cannot use them unless they work their way down to low or minimum risk assessment status.

What the Program Statement does not mention is how people in halfway houses or on home confinement can earn ETCs, despite the fact the First Step Act and the BOP’s own final rules contemplate it. In fact, reference to “community service projects” and “religious services” as unstructured activities seems to be perfectly suited for people on prerelease custody.

In the Merrick Garland letter, Senators Durbin and Grassley complained that the BOP has no mechanism to allow people on prerelease custody to earn ETCs.

makingitup221121Also unmentioned in the Program Statement is the BOP’s “18-month rule” that inmates with 18 months or less remaining on their sentences may not apply ETCs towards reducing their sentences. Senators Durbin and Grassley complained in their letter that the 18-month rule “is not supported by the FSA, nor does it further the FSA’s goal of incentivizing recidivism reduction programming for returning persons. Moreover, under this guidance, any federal prisoner with a sentence of 18 months or less would be unable to earn an earlier release date. BOP should therefore not implement an arbitrary cutoff on earning ETCs toward release.”

U.S. District Judge Lorna G. Schofield granted habeas corpus last week to a prisoner who complained that the BOP had arbitrarily refused to apply any of his ETCs earned after January 2022 to a shortened sentence. The BOP explained that it was not applying any ETCs to a reduced sentence once the inmate was within 18 months of release.

Judge Schofield ordered the BOP to apply the prisoner’s ETCs to a shortened sentence up to the 365-day limit. She ruled,

Letter to Attorney General (November 16, 2022)

Forbes, U.S. Senators Express Concern With Bureau Of Prisons’ Implementation of First Step Act (November 17, 2022)

BOP, P.S. 5410.10, First Step Act of 2018 – Time Credits: Procedures for Implementation of 18 U.S.C. § 3632(d)(4) (November 17, 2022)

BOP, First Act Approved Programs Guide (August 2022)

Brodie v. Warden Pliler, 2022 U.S.Dist. LEXIS 202749 (S.D.N.Y., Nov 7, 2022)

– Thomas L. Root

‘You Can’t Just Make Stuff Up,’ Two Courts Tell BOP – Update for November 10, 2022

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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.

TWO EARLY HABEAS DECISIONS ON FSA CREDITS AND DETAINERS ARE POSITIVE

maketherules221110The Federal Bureau of Prisons has been refusing to award earned-time credits (ETCs) for prisoners who complete evidence-based programs to reduce recidivism (EBRRs) where the inmates have detainers, whether for immigration, pending charges or other sentences to be served. Challenges to the practice are in their early stages, but right now decisions on the merits stand at prisoners 2, BOP 0.

Explainer: When another agency or court wants a prisoner – either for service of a sentence, a pending charge, or so it can start deportation proceedings – a “detainer” is filed with the prison authority informing it that the prisoner is to be turned over to the detaining entity when his or her sentence is complete.

The BOP honors detainers, and refuses to place prisoners with detainers in minimum-security camps or send them home to halfway houses or home confinement at the end of their sentences.

When Congress passed the First Step Act, there was an 11th-hour flurry of amendments that severely narrowed the number of prisoners eligible to get credit for completing EBRRs. Prisoners whose crimes included carrying guns, fentanyl, certain leadership roles, sex offenses… by the time Republican fire-breathers like Ted Cruz and Tom Cotton were done, at least 64 different categories of prisoner were excluded from the ETC program, constituting about half of all federal prisoners.

But their programming penuriousness has a flip side: by detailing so many exclusions, Congress strongly implied that the BOP had not been delegated any authority to concoct its own list of additional exclusions.

Notably, the ETC exclusions mention nothing about detainers.  But that hasn’t stopped the BOP from asserting that it has the discretion to declare the inmate ineligible for early release “because the BOP is entitled to interpret the FSA to allow it to deny application of earned ETCs to those federal inmates who have pending criminal charges or a detainer.”

The very early returns are in, and the BOP is losing. In a California district court case, the BOP declared an inmate with low recidivism ineligible to have his earned ETCs applied to his sentence due to two pending Missouri criminal cases. The BOP told the court that the agency has the discretion to declare the inmate ineligible for early release “because the BOP is entitled to interpret [First Step] to allow it to deny application of earned ETCs to those federal inmates who have pending criminal charges or a detainer.”

words221110The magistrate’s recommended decision in Jones v. Engleman rejected the BOP’s position, holding that it is fundamental that a statute’s “words generally should be interpreted as taking their ordinary, contemporary, common meaning at the time Congress enacted the statute. Agencies exercise discretion only in the interstices created by statutory silence or ambiguity; they must always give effect to the unambiguously expressed intent of Congress.”

“Here,” the Magistrate Judge ruled, “there are no such interstices, because the relevant portions of the [First Step Act] are not ambiguous or incomplete and Congress’s intent is clearly expressed through mandatory statutory language. The language of the [First Step Act] shows that Congress made a conscious choice to do three things. One, by its use of ‘shall be applied’ and ‘shall transfer”‘language in Section 3632(d)(4)(C), Congress made the application of earned ETCs to effect early release mandatory for prisoners “eligible” under Section 3624(g). Two, by Section 3624(g), Congress spelled out the prerequisites for a prisoner to be ‘eligible,’ which have been described earlier and do not contemplate any additional criteria or precondition to release akin to the Pending Charges Exclusion. Third, by Section 3632(d)(4)(C), Congress explicitly determined which prisoners are “ineligible” to have the [First Step Act]’s ETC and early release provisions applied to them, and none of these expressly delineated categories include prisoners who have pending charges or detainers.”

(After the Jones v. Engleman recommended decision, the BOP decided that inmate Jones didn’t have a detainer after all, so the District Court did not adopt that part of the recommended decision  due to mootness).

myrules221110In a New Jersey case, an inmate with a pending Pennsylvania parole detainer was denied his ETCs because under BOP rules, he was ineligible for halfway house or home confinement due to the detainer. The District Court ruled that the First Step Act’s list of prisoners ineligible for ETCs left no room for the BOP to add other categories. The Court held:

If… the warden determines that Petitioner’s earned TCs should be applied to early supervised release, rather than prerelease custody to a residential reentry center or home confinement, there is no statutory provision or BOP regulation that precludes application of TCs toward early supervised release of prisoners who have state detainers lodged against them. As Petitioner suggested, the provisions regarding detainers in BOP Program Statement 7310.04 apply only to prerelease custody to residential reentry centers and home confinement. As Respondent points out, however, supervised release is different because it does not involve BOP custody…

There is bound to be much more litigation over whether the BOP may deny prisoners with detainers from using ETC credits for shortened sentences. These early decisions suggest that courts will be skeptical of BOP efforts to expand the list of people being denied ETCs.

Jones v. Engleman, Case No 2:22-cv-05292, 2022 U.S.Dist. LEXIS 185635 (C.D. Cal., Sept. 7, 2022)

Jones v. Engleman, Case No. 2:22-cv-05292, 2022 U.S.Dist. LEXIS 185029 (C.D. Cal., Oct. 7, 2022)

Moody v. Gubbiotti, Case No 21-12004, 2022 U.S.Dist. LEXIS 181399 (D.N.J., Oct. 3, 2022)

– Thomas L. Root

Some BOP Tidbits From Last Week – Update for November 8, 2022

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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.

LAST WEEK IN THE BOP

sexualassault211014Deputy Attorney General Lisa Monaco told Department of Justice  officials last Wednesday that prosecutors must use “all available tools” to hold BOP employees who sexually abuse women in their custody accountable, including employing a new law that has a maximum sentence of 15 years.

“The Department’s obligation to ensure the safety and wellbeing of those in our custody is enduring,” Monaco wrote. Her memo, obtained by NPR, “follows a high-level review this year that uncovered hundreds of complaints about sexual misconduct by Bureau of Prisons employees over the past five years, but only 45 federal prosecutions during that same period.”

The working group identified weak administrative discipline against some prison workers — and flaws in how prosecutors assessed reports of abuse.

Meanwhile, Sen. Richard Durbin (D-IL), chairman of the Judiciary Committee, issued a statement that last week’s “DOJ report on pervasive sexual abuse in our nation’s federal prisons is evidence of the desperate need for reform. The new Director, Colette Peters, needs to show resolve and Congress needs to back her efforts to clean up this sorry mess.”

peters220929BOP Director Colette Peters continued her charm offensive last week, sitting for a lengthy interview with Government Executive magazine. Despite the DOJ Inspector General’s report the week before criticizing the BOP for reflexively disbelieving inmates and whitewashing staff misconduct, Peters said, “We are partnering with the inspector general. I’ve met with him multiple times now to ensure that we’re holding individuals accountable. I’ve met with the U.S. attorneys and asked the same thing: that they take these employee cases very seriously, both because those individuals need to be held accountable, but the person working next to that individual needs to know that their work is valued and that when people are making bad choices, that they’ll be held accountable, so that the employee remaining is safe and secure.”

Peters noted that the BOP will fill 40 additional in its Office of Internal Affairs to address sexual assault backlogs.

Peters also told Government Executive, “[T]here’s a huge perception out there that [First Step Act] implementation didn’t happen or didn’t happen when it was supposed to. But as I review the outcomes and the deliverables we’ve delivered, the programming is happening…While there might have been bumps along the way, the agency has been working really hard to ensure that [First Step Act] implementation happens both at headquarters and in the institutions.”

ombudsman221108I reported last month that Sens Jon Ossoff (D-GA) and Mike Braun (R-IN) had introduced legislation, the Federal Prison Oversight Act (S. 4988) that would establish an independent DOJ ombudsman to investigate the health, safety, welfare, and rights of BOP inmates and staff and create a hotline for relatives and representatives of inmates to lodge complaints. A companion bill, H.R.9009, was introduced in the House by Rep. Lucy McBath (D-GA).

A week ago, Sen. Ossoff told Capital Beat News Service that the bill’s prospects for passage during the Congressional lame-duck session after this week’s mid-term elections “are favorable because it has bipartisan support.”

NPR, Guards who sexually abuse inmates haven’t been punished harshly enough, DOJ memo says (November 3, 2022)

Office of Richard Durbin, Durbin Statement On New Report On Sexual Misconduct By Bureau Of Prisons Staff (November 4, 2022)

Government Executive, We’re Not ‘Shawshank Redemption’: New Federal Prisons Director Tackles the Bureau’s Reputation (November 2, 2022)

Capital Beat News Service, U.S. Sen. Jon Ossoff sees ‘signs of improvement’ at Atlanta federal penitentiary (October 26, 2022)

– Thomas L. Root

BOP Agrees to Do What It Always Should Have Been Doing – Update for November 4, 2022

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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.

LOMPOC COVID CLASS ACTION SUIT SETTLES

release161117The two-year-old class action lawsuit against the Federal prison complex at Lompac, California, over COVID mismanagement ended last week with a stipulation by the parties that the Federal Bureau of Prisons will transfer eligible inmate class members to CARES Act home confinement in accordance with an earlier preliminary injunction, with substantial weight given to COVID-19 risk factors and without denying anyone based solely on the amount of time served or the nature of a prior offense.

The BOP also agreed to perform daily symptoms checks for people placed in quarantine, screen inmate class members working in communal spaces for COVID-19 symptoms, and ensure that those isolated in the SHU are treated differently from those housed there for punitive reasons, including providing access to clocks, radio, reading materials, personal property, and commissary.

The inmate class lawyers, working pro bono from the LA office of the 340-lawyer firm Manatt, Phelps and Phillips, argued that the nature of overcrowded prison settings prevented social distancing or taking other recommended COVID precautions. They argued the BOP had failed to follow the Attorney General’s order to maximize the release of at-risk individuals to home confinement, thus violating their 8th Amendment rights.

As a result, the lawsuit alleged, the virus spread to 60% of those in custody, over 1,200 people at the overcrowded facility, The suit sought declaratory and injunctive relief for improved conditions of confinement, as well as a writ of habeas corpus for release.

deadcovid210914The Court issued a preliminary injunction in July 2020 requiring the BOP to immediately review a provisional class of people over 50 years old or who had underlying COVID morbidity health conditions for home confinement and to promptly transfer eligible people to their homes. Subsequent orders prohibited the BOP from denying people home confinement based solely on the basis of the amount of time served or the nature of a prior offense. About 250 people have been transferred to CARES Act home confinement from Lompoc since the preliminary injunction was issued.

In a related report, the Santa Barbara Independent reported last week that the estate of Mohamed Yusuf, who was serving the final year of a 132-month sentence at USP Lompoc when he died of COVID-19, is pursuing a wrongful death action against the prison for allegedly allowing him to die of COVID without providing proper medical care.

Yusuf was 37 years old, married with three children, and in “sturdy health” when he tested positive for the coronavirus on May 7, 2020, the lawsuit states. At the time, in the early days of the pandemic, the prison complex was experiencing a massive outbreak that ultimately killed five inmates and infected more than 1,200, more than any other BOP facility. The suit alleges that “while correctional staff knew of the Decedent’s dire need for help, they did not provide prompt and appropriate care and assistance, and some joked about the matter, going so far as to call the Decedent a ‘faker’ and a ‘wimp’.”

covidtest200420Why does any of this matter? The nation is bracing for another wave of COVID-19 just as a surge in new Omicron subvariants has raised concern among scientists. The Centers for Disease Control and Prevention released data last week showing that BQ.1 and its brother BQ.1.1 now account for over 10% of US cases, while BF.7 accounts for another 5%.

“Within a few weeks, things could look upside down,” according to John Swartzberg, an infectious disease and vaccinology expert at the University of California, Berkeley. If the subvariants keep spreading at the same rate, they could overtake BA.5 as the nation’s most prevalent SARS-CoV-2 strain. Globally, mutations also include contenders such as the Omicron subvariant XBB, which is suspected of being able to evade vaccines.

Just this morning, The New York Times reported that the recent decline in Covid-19 cases across the United States has started to level off. “Coronavirus-related hospitalizations are ticking up in a number of states, including Arizona, Indiana, Illinois, Nevada, Nebraska, Oklahoma, South Dakota and Wisconsin. And there have been a variety of unnerving headlines about the immune evasion and increased transmissibility of the next round of coronavirus subvariants.”

BOP, Lompoc, COVIYesterday, White House chief medical advisor Dr. Anthony Fauci said the COVID deaths, which average more than 2,600 per week, remain too high. At the same time, he said, the new omicron variants are knocking out key tools used to protect the most vulnerable.

As of yesterday, the BOP reported that COVID was present in 70% of its institutions, with 238 inmates and 318 staff ill with the virus.

Order re Joint Motion for Approval of Settlement, ECF 863, Torres v Milusnic, Case No. 2:20cv4450 (C.D.Cal., October 11, 2022)

Manatt, Manatt Secures Settlement in Pro Bono Class Action Lawsuit For Prison Health and Safety (October 25, 2022)

Santa Barbara Independent, Estate of Terrorist Killed by COVID in Lompoc Prison Sues Warden, Staff (October 26, 2022)

National Geographic, Why Omicron subvariants BQ.1 and BQ.1.1 are poised to take over in the U.S. (October 18, 2022)

The New York Times, New Covid Variants Are Circulating. Here’s What to Know. (November 4, 2022)

CNBC, U.S. faces pandemic crossroads with Covid deaths still too high and new omicron variants emerging, Fauci says (November 3, 2022)

– Thomas L. Root

Trick or Treat – Update for October 28, 2022

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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.

Today, a little early Halloween…

TREAT: SENATE BILL AIMED AT HELPING PREGNANT PRISONERS

treat221028Not that introduction of a bill this late in the Congressional season is much more than symbolism, but legislation introduced a few weeks ago by Sens Amy Klobuchar (D-MN) and Susan Collins R-ME) aims to improve care in federal prisons for pregnant and postpartum women and their babies.

The Protecting the Health and Wellness of Babies and Pregnant Women in Custody Act (S.5027) would establish care standards for federal facilities across the country, requiring access to medical and mental health services, as well as education about parental rights and lactation.

The act would restrict when pregnant women can be placed in restrictive housing, ban the Bureau of Prisons and U.S. Marshal Service from placing pregnant women in solitary confinement during the third trimester, and require the BOP to evaluate pregnant women to determine if their pregnancy is high-risk.

Companion legislation in the House was introduced by Reps Karen Bass (D-CA) and Guy Reschenthaler (R-PA).

Sadly, the likelihood that this bill will be considered before the 117th Congress expires on January 2, 2023, is remote.

Gov’t Executive, Senate Bill Aims to Improve Care for Pregnant Women and Babies in Federal Prisons (October 18, 2022)

S. 5027, Protecting the Health and Wellness of Babies and Pregnant Women in Custody Act

TRICK: IF AT FIRST YOU DON’T SUCCEED…

trick221028After Dan Kordash got caught at the airport by Customs and Border Protection officers after declaring he was carrying $12,000 in currency that turned out to be more like $33,000 (money which he forfeited), he was detained and questioned by CBP on at least two subsequent occasions. What’s worse, CBP officers told Dan that because of the money incident, he could count on always getting the third degree when he passed through the airport.

Dan filed Bivens claims against the CBP officers who detained him. The district court found that the officers had qualified immunity and dismissed the complaint. Not to be deterred, Dan then filed a Federal Tort Claims Act complaint for false imprisonment, battery, assault, intentional infliction of emotional distress, and negligence. The district court dismissed the new complaint as well for failure to state a claim, and Kordash appealed.

Last week, the 11th Circuit upheld the FTCA dismissal, holding that the doctrine of collateral estoppel meant that the Bivens suit determination that the officers acted lawfully in furtherance of federal policy should apply to the FTCA suit as well.

The 11th held that the issue in the FTCA case – whether the officers’ acts had a “nexus” with furthering federal policy and complied with federal law – was identical to the issue in the Bivens action. “In the Bivens action,” the Circuit said, “the district court determined for each incident when Kordash or Nilsen were stopped whether the officers acted within their discretionary authority and whether the detentions complied with federal law. Here, the same legal inquiries govern the application of the Supremacy Clause as a bar to liability for claims arising out of these incidents under the Federal Tort Claims Act.”

Because the issue met the test for issue preclusion, “Kordash is barred from relitigating these issues under the doctrine of collateral estoppel.”

Kordash v. United States, Case No. 21-12151, 2022 U.S.App. LEXIS 29420 (11th Cir., Oct. 21, 2022)

TREAT: MINNESOTA DRUG SALE STATUTES OVERBROAD

treatB221028The 8th Circuit ruled last week that because Minnesota’s definitions of “narcotic drug” and cocaine“ include drugs that the federal controlled-substance schedules do not, convictions under those statutes are not predicate “serious drug offense” under the Armed Career Criminal Act.

While the defendant was still convicted of a felon-in-possession count under 18 U.S.C. § 922(g)(1), his sentence exposure fell from 15 years to life all the way down to zero to 10 years.

United States v. Owen, Case No. 21-3870, 2022 U.S.App. LEXIS 28979 (8th Cir., Oct. 19, 2022)

– Thomas L. Root