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Light at the End of the Tunnel is an Oncoming COVID Train – Update for December 31, 2020

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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.

STILL LOOKING FOR THE PEAK?

Last week, I reported that the Bureau of Prisons’ numbers had dropped 25% from the week before, suggesting that maybe the latest BOP COVID spike had peaked, and recovery was at hand.

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No such luck. As of last Monday, the system’s active cases had jumped 12% from a week earlier, to 7,690 active inmate cases and 1,616 sick staff, COVID in 127 BOP facilities and 188 dead inmates. The number of sick inmates fell yesterday to 6,949, still 11% higher than two weeks ago. As of last night, BOP has tested 64% of all inmates at least once, with a worrisome positivity rate of 40%.

lighttunnel201231Last week, I noted that despite official pronouncements that only BOP staff were getting COVID-19 vaccine, I had received inmate reports that some prisoners had been vaccinated at two Texas facilities and one in North Carolina. Last Tuesday, the BOP told Associated Press that the vaccine had been delivered to four facilities that had been among some of the hardest hit during the pandemic, including FCC Butner. AP quoted a BOP spokesman as saying that while it continued to plan to offer vaccines to full-time staff, “at this time, we can confirm high risk inmates in a few of the BOP facilities in different regions of the country have received the vaccine.” AP noted the BOP did not say how many inmates had been vaccinated, how the inmates were selected, or how many doses of the vaccine the agency had received.

The agency told the AP about half of the staff at each of the four facilities that received the vaccine had been inoculated. The balance was offered to inmates.

COVIDvaccine201221Forbes magazine reported last Monday that “word came from someone who is an inmate in an institution in the mid-Atlantic US that they are on a list to receive the vaccination at the first of the year. The vaccinations represent the first step in curbing the spread of COVID-19 in prisons. The roll-out of the vaccines to inmates will certainly cause a disruption in the number of compassionate release cases and the release of inmates under the CARES Act.” Forbes is a usually reliable publication, but the report – from a single unidentified inmate – is pretty thinly sourced.

As of last night, Fort Dix, Terre Haute, Safford, Pekin, Lexington, Schuykill and Atwater were all reporting more than 200 inmate COVID-19 cases. Another 14 facilities had more than 100 inmate cases.

Every inmate death is concerning, but three last week were especially troubling. An inmate at Talladega died of COVID-19 without ever being diagnosed with the disease or presenting symptoms. A Lompoc inmate had COVID in May and was declared “recovered,” but was hospitalized in August with COVID. He remained there until dying December 15. In a third case, a Memphis inmate with no prior medical conditions whatsoever fell ill on December 2, was hospitalized 10 days later, and died December 19.

Finally, a most unusual compassionate release: After a mix-up by the BOP, a Guam federal judge granted Jesse Cruz’s sentence reduction motion and ordered his immediate release.

Jesse had health issues including post-traumatic stress disorder, degenerative spinal disc disorder, sciatica, sleep apnea and other issues, according to US District Court Judge Frances Tydingco-Gatewood.

release161117There was also an “extremely rare and unique situation” in Jesse’s case: the BOP miscalculated his release date, releasing him from FCI Sheridan on October 14, although his home confinement was not supposed to start until next February. The BOP didn’t give Jesse any medication when he was sent to Guam, even though the FCI Sheridan doctor had ordered he get his medication upon release.

Upon arriving on Guam, Jesse had to quarantine at a government facility. While Jesse was in quarantine, the BOP realized its mistake and had Cruz arrested when he left the quarantine facility.

During a hearing last Wednesday, the Judge learned Jesse hasn’t received any medication at all while incarcerated on Guam, even after Jesse and his wife presented numerous requests for medication and a CPAP machine to the detention facility and the U.S. Marshals. While Jesse’s health conditions would not normally justify compassionate release, the Judge ruled, “the disturbing failure of the BOP to properly calculate his release date from FCI Sheridan has resulted in a total lack of care for Cruz’s ailments.” Jesse “has been forced to serve several months of his sentence at a non-BOP facility while suffering from numerous maladies of the mind and body without respite,” the Judge held.

The Hill, Federal Bureau of Prisons reverses on withholding COVID-19 vaccine from inmates (December 22, 2020)

Greensboro, N.C. News & Record, Reversing course, feds say some N.C. inmates got virus vaccine (December 23, 2020)

Forbes, Federal Bureau of Prisons Starts Vaccination of Staff, Inmates Soon Thereafter (December 21, 2020)

Pacific Daily News, ‘Extremely rare and unique situation’: Sentence reduced for man mistakenly released (December 24, 2020)

– Thomas L. Root

Inmate Vaccine Not In The Near Term? – LISA Newsletter for December 21, 2020

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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.

INMATES NO PRIORITY FOR VACCINE, ADVISORY PANEL RECOMMENDS

COVIDvaccine201221The Federal Bureau of Prisons received its first shipment of COVID-19 vaccines last Wednesday, and began administering the drug to its correctional officers and health care staffers. The agency said inmates will follow “when additional doses are available.”

And that’s not going to be anytime soon. Earlier this month, the Advisory Committee on Immunization Practices said health care workers and nursing home residents — about 24 million people — should be at the very front of the line for the vaccines. Sunday afternoon, the panel voted 13-1 that next in line should be people 75 and older, who number about 20 million, as well as certain front-line workers, who total about 30 million. Those essential workers include firefighters and police; teachers and school staff; those working in food, agricultural and manufacturing sectors; corrections workers; U.S. Postal Service employees; public transit workers; and grocery store workers.

The committee also voted that behind those groups should be people aged 65 to 74, numbering about 30 million; those aged 16 to 64 with certain medical conditions such as obesity and cancer, that are at higher risk if they get infected with COVID-19, numbering as many as 110 million; and a tier of other essential workers. This group of as many as 57 million includes a wide category of food service and utility workers but also those in legal and financial jobs and the media.

How about vaccine for inmates? The BOP told CBS last week that it is up to Operations Warp Speed to decide when inmates will receive the vaccine. CBS reported, however, that a spokesperson for Operation Warp Speed said the BOP would decide about the timeline.

The National Commission on Covid-19 and Criminal Justice last week recommended that inmates receive priority consideration for Covid-19 vaccines equal to that for police and correctional officers. That recommendation, however, appears to be one of many rejected by the Advisory Committee.

inoculation201221And yet… I received several inmate emails last week (and this is totally unconfirmed) that a handful of BOP inmates at two facilities received vaccine last week. The emails gave no indication of how the inmates were selected for the vaccine. One – from a Texas BOP facility written two days ago – said

well the good news and vibes ran out on the [institution] compound. we ran out of vaccines before we completed even one building. of course the fact that no one was planned to receive it inmate wise. what we did get is hopefully helpful. my building has about 40% done on the first dose.

Another inmate email, received early this morning, independently reported that some inmates at the same institution (“at least a couple hundred,” the report stated) received vaccine.

An inmate in a separate Texas facility reported Friday night:

I thought you’d be interested in reports that 100 inmates received their first dose of the vaccine today. Some of these are known personally to me, so I can confirm that they were sent to the clinic and given a shot. They were told that they would be called back to the clinic in 21 days for their second dose. Reportedly, all staff who wanted the vaccine have received their first dose.

One can reasonably infer from the emails that perhaps the vaccine being administered was left over after staff inoculations had been completed, and – having been thawed – had to be used within five days.

[Later note: An inmate from a North Carolina facility reported by email on Monday, December 21, that he had gotten the vaccine: “Once the staff here at the [institution] received their vaccinations if they chose, there were doses left over. Instead of letting those doses go to waste, the staff chose to offer them to some of the inmates based on their medical conditions.  There were probably around 30 or so in my housing unit, including myself, that were offered the vaccine.  Most of us chose to take it.  I, myself, am thankful to the staff for making that decision and offering them to us and I felt that I needed to let you know that some of us are getting it.” ]

More than two dozen members of House of Representatives last Wednesday demanded details about how inmates will be vaccinated for COVID-19, questioning whether the most vulnerable prisoners will have priority access.

In a letter to BOP director Michael Carvajal and Centers for Disease Control and Prevention chief Dr. Robert Redfield, the 26 lawmakers, led by Rep. Bobby Scott (D-Virginia), wrote,

The BOP has provided informal information regarding the vaccine distribution plan. We are deeply concerned that the current plan places the most vulnerable incarcerated individuals who have a cancer diagnosis, chronic kidney disease, chronic obstructive pulmonary disease, heart conditions, compromised immune systems, sickle cell, diabetes, and individuals 65 years or older in priority level 3 behind incarcerated individuals in minimum security facilities who are in open bay housing and are currently listed in priority group 2. Incarcerated individuals with these types of medical conditions are at a high risk of complications if they contract COVID-19 as it spreads through federal prisons yet are slated to receive the vaccine after prison staffers in phase 1 and other incarcerated individuals listed in phase 2.

Despite reporting that over 1,500 inmates “recovered” from COVID-19 within just a few days of each other, the BOP still reported having 5,881 active inmate cases,1,694 sick staff, COVID in 126 BOP facilities and 180 dead inmates (up 13 in one week). The BOP has tested 62% of all inmates at least once, with the positivity rate continuing to ratchet up. As of last Friday, 36% of all inmate tests are positive for COVID.

Still, the trend apparently suggests that the latest BOP outbreak has peaked.

BOPCOVID201218

As of last Friday, Sandstone, Florence, Loretto and Pekin all reported over 200 inmate COVID-19 cases, another 12 facilities had more than 100 cases, and another 20 joints had 50 or more. Loretto had been written down from over 600 cases earlier in the week as inmates are declared to be recovered.

A cautionary note about those “recovered” inmates. Of the 13 inmates who died last week, two – a 64-year old man at FCI Victorville I and a 72-year old man at FCI Lompoc – had contracted COVID-19 months ago, and were considered “recovered” before getting much sicker and dying. In fact, the State of Michigan Dept of Health said last week that it is currently investigating 115 of “recovered” state inmates testing positive for COVID-19 three months after they were believed to be COVID-free.

New York Post, Federal prison workers to start getting vaccinated Wednesday (December 14, 2020)

Chicago Tribune, Federal panel says people over 75, essential workers should be next in line for COVID-19 vaccine as Moderna shots begin shipping out (December 20, 2020)

CBS News, Federal prisons to prioritize staffers for COVID-19 vaccine and give to inmates when more doses are available (December 18, 2020)

National Commission on Covid-19 and Criminal Justice, Experience to Action: Reshaping Criminal Justice After COVID-19 (December 14, 2020)

Letter to BOP from Rep. Robert C. Scott (D-Virginia) (December 15, 2020)

Reuters, U.S. lawmakers press prison authorities on inmate COVID-19 vaccination plans (December 16, 2020)

Detroit Free Press, State reviewing possible COVID-19 reinfections after 115 prisoners test positive twice (December 12, 2020)

– Thomas L. Root

Director Says BOP “Has A Sound Pandemic Plan In Place…” As COVID-19 Spirals Out of Control – Update for December 14, 2020

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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.

COURT ORDERS BOP TO HONOR SETTLEMENT, WHILE INMATE COVID CASES INCREASE 30% IN ONE WEEK

Ten days ago, the number of Bureau of Prisons inmate COVID-19 cases passed 5,000. That was a first… but it was nothing compared to last week.

As of last Friday, the BOP reported 7,278 ill inmates (a 30% from the week before),1,716 sick staff (up 9% from last week), COVID-19 in 127 BOP facilities and 167 dead inmates. The BOP has tested 58% of all inmates at least once, with the positivity rate continuing to ratchet up. As of last Friday, 34% of all inmate tests are positive for COVID.

BOPCOVID201214

Recall that on December 2, BOP Director Michael Carvajal told a House Subcommittee that the BOP’s COVID-19 “procedures have proven effective as this is evidenced by the steep decline in our inmate hospitalizations, inmates on ventilators and deaths.” Some feel differently.

Last Friday, a Connecticut U.S. District Court found that the BOP had violated its settlement agreement in a class action of 450 medically vulnerable prisoners brought last spring over COVID-19 conditions at FCI Danbury. The unhappy judge ordered the BOP to release 17 medically vulnerable inmates by 5 p.m. the next day (a Saturday), prohibited the BOP from relying on administrative roadblocks to delay the release of those granted home confinement, and directed the BOP to report to the plaintiffs’ attorneys whenever the agency expects to fail to release inmates granted CARES Act home confinement within 14 days of grant.

The court order followed a long hearing the day before, where the court heard about a new Danbury COVID-19 outbreak and the BOP’s corresponding failure to mitigate the spread of the disease. In one week, the number of Danbury COVID-19 cases went from zero to nearly 50. The plaintiffs said despite the BOP’s promise to check daily for symptoms for the duration of the pandemic, the BOP failed to follow this pledge for two weeks during a surge of the disease around the country.

A July settlement of the lawsuit required the BOP to promptly identify prisoners who are low security risks and have a greater chance of developing serious complications from the virus and release them to home confinement. The settlement called for prisoners to be released within 14 days of being approved. But the plaintiffs’ lawyers say some of them have been waiting nearly three months to be released after being approved for home confinement.

whoyabelieve201214The BOP cited several reasons for the delays in releasing the inmates, including required 14-day quarantines due to the virus and BOP guidelines in releasing inmates to the community. The Court was not impressed.

Meanwhile, in Minnesota, the ACLU last week filed suit alleging the BOP’s FCI Waseca has “failed to respond in any meaningful way to the pandemic.” The ACLU says the prison did not release medically vulnerable people from the prison, where two out of three inmates contracted COVID-19, making social distancing impossible.

New Jersey congressional leaders last week renewed their call to end inmate transfers to FCI Fort Dix. Led by Senators Robert Menendez and Cory Booker (both D-New Jersey), the state’s congressional delegation sent a second letter to BOP Director Carvajal week calling for the end of inmate transfers and asking the BOP to outline its plan for allocating and administering the COVID vaccine.

The BOP had previously instituted a moratorium on all inmate transfers to Ft Dix through Nov. 23 as active cases hit 300. The lawmakers and BOP staff have pointed to the October transfer of inmates from FCI Elkton to Ft Dix as the cause of the outbreak. BOP officials have denied the accusation. The moratorium was not extended, the BOP said last week, despite a previous letter from the state’s lawmakers demanding the moratorium continue until there are no active cases at the prison.

“By resuming transfers of incarcerated individuals into and out of the facility in the midst of a severe outbreak, BOP is putting at risk the lives of both staff and incarcerated individuals,” the lawmakers wrote in the letter.

COVIDheart200720The BOP is seeing a resurgence of COVID at institutions where it had previously been controlled. The virus is again at FCC Lompoc, site of one of the worst prison COVID outbreaks in the country, according to the Santa Barbara Independent. An investigation last summer by the Dept. of Justice Inspector General found that the BOP’s initial response to COVID “failed on a number of fronts and likely contributed to the severity of the outbreak, including staffing shortages, inadequate screenings, and a scarcity of protective equipment.”

As of Friday, Englewood and Loretto each have more than 600 sick inmates, Texarkana and Pekin more than 300 each, five more facilities with more than 200, and 12 more BOP institutions with over 100 active COVID cases.

When a local newspaper asked the BOP about Loretto, a spokesman said the prisons are following accepted guidelines. While declining to address the Loretto situation “due to privacy, safety and security reasons,” the spokesman told the paper, “we can tell you all institutions have areas set aside for quarantine and medical isolation.”

Meanwhile, The New York Times last week criticized the BOP for its management of COVID at FDC Brooklyn. Noting that 55 inmates had tested positive for COVID-19, The Times said, “many months into this pandemic, the Federal Defenders of New York, a legal advocacy group, said officials at the jail aren’t following basic public health guidelines to prevent the spread of the virus, to care for sick inmates or to protect those who are most vulnerable. The reports… are disturbing. Corrections officers, they say, aren’t properly wearing masks, including while interacting with inmates. Sick inmates aren’t receiving proper medical attention and are being placed in cells with healthy individuals. One person incarcerated at the facility told an attorney with the Federal Defenders that severely ill inmates who asked for medical attention didn’t get it.”

A BOP spokesman disputed the Defenders’ claims. Nevertheless, the Times said, “if the conditions are anything like what the Federal Defenders describe, they are an affront to human dignity and a threat to the public health of Americans in and out of the Brooklyn facility.”

lies170310And here’s an interesting glimpse at the BOP’s record-keeping, a factoid that could suggest to reasonable people that the BOP’s numbers cannot necessarily be trusted. A Youngstown, Ohio, news website, reporting on Columbiana County, Ohio, COVID numbers, was trying to derive a number of people recovered from the virus. It noted that FCI Elkton – located in the county – reported “896 incarcerated people and 54 employees had recovered from COVID-19 as of today… That number has declined in recent weeks, suggesting the bureau removes cases from its total when people are transferred out of the prison.”

Yale University Law School, CJAC Wins Speedy Release of Medically Vulnerable Individuals from Federal Prison in Danbury (December 12, 2020)

Order, Whitted v Easter, Case No 3:20-cv-00569 (D. Conn, December 11, 2020)

WWLP-TV, Judge orders release of 17 virus-vulnerable federal inmates (December 12, 2020)

KMSP-TV, ACLU sues federal prison in Waseca, Minn. after 67% of inmates test positive for COVID-19 (December 10, 2020)

Burlington County Times, More NJ lawmakers renew call for end to inmate transfers at FCI Fort Dix (December 10, 2020)

Johnstown Tribune-Democrat, Feds: Loretto prison following guidelines (December 11, 2020)

Mahoning Matters, Columbiana County reports 244 new COVID-19 cases, 2 new deaths (December 11, 2020)

New York Times, Stop the Coronavirus Outbreak at Brooklyn’s Federal Jail (December 8, 2020)

– Thomas L. Root

Whither Vaccine? – Update for December 10, 2020

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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.

VACCINE DELIVERY TO FALL SHORT WHILE DEBATE OVER INMATE ACCESS INTENSIFIES

The Washington Post reported last Saturday that federal officials have slashed the amount of coronavirus vaccine they anticipate will ship in December because of constraints on supply, sending local officials into a scramble to adjust vaccination plans and highlighting how early promises of a vast stockpile before the end of 2020 have fallen short.

COVIDstockpile201210

And if that were not enough, it now appears that before Pfizer’s coronavirus vaccine was proved highly successful in clinical trials last month, the company offered the Trump administration the chance to lock in supplies beyond the 100 million doses the pharmaceutical maker originally agreed to sell the government. The New York Times reports, however, that the administration, according to people familiar with the talks, never made the deal, “a choice that now raises questions about whether the United States allowed other countries to take its place in line.”

papertiger201210

The President issued an executive order on Tuesday that proclaimed other nations will not get the U.S. supplies of its vaccine until Americans have been inoculated. But, the Times said, “the order appears to have no real teeth and does not expand the U.S. supply of doses…”

Instead of the delivery of 300 million or so doses of vaccine immediately after emergency-use approval and before the end of 2020, as the administration had originally promised, current plans call for availability of around a tenth of that, or 35 to 40 million doses. And that is out of a maximum delivery of 100 million Pfizer doses, enough to inoculate 50 million people.

Meanwhile, The New York Times reported a week ago that as public health officials are scrambling to develop guidelines for the equitable allocation of limited vaccine supplies, “inmates are not ranked in the top tiers of the federal criteria, even though some of the largest outbreaks have occurred in the nation’s prisons.” The CDC advisory committee has prioritized correctional officers and others who work in jails and prisons for the first phase of immunizations, a decision the Times says “raises a chilling prospect: another prison outbreak that kills scores of inmates after the only preventive was reserved for staff.”

corona200313Several groups, including the American Medical Association, are calling for coronavirus vaccines to be given to inmates and employees at prisons, jails and detention centers, citing the unique risks to people in confinement — and the potential for outbreaks to spread from correctional centers, straining community hospitals. “We aren’t saying that prisoners should be treated any better than anybody else, but they shouldn’t be treated any worse than anybody else who is forced to live in a congregate setting,” said Dr. Eric Toner, co-author of a report on vaccine allocation published by the Johns Hopkins Center for Health Security.

But a political backlash has been brewing over the idea that inoculating people behind bars should be a priority. “Killers and rapists set to get COVID vaccines before Granny,” a recent Fox News segment proclaimed.

Curiously (and this should be treated as probably true but unconfirmed) two inmates from two very different locations – FCI Petersburg Medium and FMC Carswell – told me yesterday that BOP health services personnel were surveying inmates at each location to determine their willingness to be vaccinated.

Can we pronounce the word “optimism,” boys and girls?

The Washington Post, Trump’s Operation Warp Speed promised a flood of COVID vaccines. Instead, states are expecting a trickle (December 5, 2020) 

The New York Times, Trump administration officials passed when Pfizer offered months ago to sell the U.S. more vaccine doses (December 7, 2020)

The New York Times, Prisons Are Covid-19 Hotbeds. When Should Inmates Get the Vaccine? (December 2, 2020)

– Thomas L. Root

Higher and Higher… – Update for December 8, 2020

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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 COVID CASES BREAKS 5,000 AS LEGISLATORS GRILL CARVAJAL

rocket-312767BOP inmate COVID-19 cases passed a grim milestone last Friday, rocketing past the 5,000 mark. That number jumped another 10% over the weekend. As of last night, the BOP had ended with

•     5,634 ill inmates (up 15% from the week before);

•    1,613 sick staff (up 12% from last week);

•    COVID in 128 BOP facilities; and

•    163 dead inmates.

The BOP has tested 57% of all inmates at least once, with the positivity rate climbing from 25% – where it has hovered for months – to over 32%.

To put this in perspective, one out of every five federal inmates who has ever had the virus has it right now.

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Two BOP facilities have more than 300 sick inmates, Loretto and Texarkana, three more with over 200 ill, andand another 16 with over 100 COVID cases. USP Tucson has 75 sick staffers, with Pollock in second place with 60 and Oklahoma FTC with 50.

Last Wednesday, BOP Director Michael Carvajal testified before the House Subcommittee on Crime, Terrorism, and Homeland Security. It wasn’t pretty. After he delivered his prepared statement – a BOP puff piece about how in response to COVID-19, the BOP had “implemented a decisive and comprehensive action plan to protect the health of the inmates in our custody, the staff, and the public, to the greatest extent possible, consistent with sound medical and corrections principles” and how the BOP’s “procedures have proven effective as this is evidenced by the steep decline in our inmate hospitalizations, inmates on ventilators and deaths” – the knives came out.

fired161227Subcommittee Chair Karen Bass (D-California) quoted a Dept of Justice Inspector General report that found up to six days elapsed before FCI Oakdale inmates who had been exposed or tested positive for COVID-19 were isolated, and wondered how that squared with the BOP’s representations. Carvajal insisted that the situation in Oakdale was not representative of BOP policies, and blamed the then-warden. “In a nutshell, we had some leadership issues there,” he said. “Our regional director had some concerns about the procedures not being enforced or followed. In essence, without getting into details, I removed the leadership.”

Carvajal pushed back at Subcommittee demands the BOP institute a blanket staff testing plan (arguably a good idea considering that 43% of all staff who have had COVID since March are sick right now). He argued that the BOP could not compel employee COVID tests. But a written statement filed with the Subcommittee by Shane Fausey, national president of the BOP employees’ unions, disputed that, complaining that despite unions’ urging, the BOP “has repeatedly refused” to offer voluntary coronavirus testing to staff members at the prison facility where they work. Instead, Fausey said, “employees who believe they were exposed or might be infected with the coronavirus must get tested on their own time and in their own communities.” For good measure, Fausey also blasted BOP and Marshals Service for transferring inmates without adequate quarantining, which he said has put “the health and safety of tens of thousands of federal correctional workers, their families, and their communities at risk.”

covidtest200420In a separate exchange with Representative Sheila Jackson Lee (D-Texas), the director said he could not force his employees to get tested for Covid-19, although the BOP waives insurance copays for those tests.

“I understand civil liberties, civil rights the Constitution, but you’re talking about individuals coming into contact with incarcerated persons who can’t walk away, who can’t get out,” Jackson Lee said. “And that means they are endangering themselves, their families at home.”

Rep. Hakeem Jeffries (D-New York) braced Carvajal about underutilization of compassionate releases. Before filing for a compassionate release, an inmate must first ask the BOP to bring the motion for him or her, a vestige of the procedure before the First Step Act broadened the law to let inmates bring their own motions. Jeffries noted that while about 2,000 such motions had been granted by courts, the BOP had approved only 11 requests when inmates first asked to the agency to do so. Jeffries asked Carvajal, “10,929 requests out of 10,940 requests were rejected, does that sound right?”

Carvajal said the BOP has been intentionally careful. Given public safety considerations, Carvajal said, the BOP’s approval rate of 0.1% makes sense: it is “not a process that should be rushed.” This suggests that the courts, with compassionate release approval rates that are 182 times higher than the agency, are profligate.

The day before the hearing, Government Executive magazine published a sobering piece in which BOP employees said that staffing shortages and COVID-19 are creating a crisis. “If not for COVID, we would still have augmentation but it wouldn’t be as crazy,” Joe Rojas, a union official. “It’s already a dangerous workplace with COVID and it’s made worse by understaffing.”

quit201208Several employees said they expect that attrition to accelerate in the coming months. Rojas said he and many others have stuck around in part due to a retention bonus the BOP offered to veteran workers in recent years. That incentive is disappearing next year, he said. A BOP spokesman said the Bureau is providing incentives “where appropriate” and taking other steps to boost recruiting. He noted the agency has hired 3,400 employees in 2020, a sharp uptick over recent years.

Already some of the prisons in the Southeast, Rojas said, are operating at 70% or less of their expected workforce level. “You can’t run a prison like that. The seams are going to burst,” he said. “I’m afraid.”

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

Courthouse News Service, Officials Spar Over Covid Spread Through Prison System (December 2, 2020)

Statement of Shane Fausey, National President, Council of Prison Locals (December 2, 2020)

Government Executive, Federal Prison Employees Fear Staff Shortages and Mass Reassignments as COVID-19 Cases Spike (Dec 1)

– Thomas L. Root

Pinching a Statute ‘Til It Hollers: BOP and Earned Time – Update for December 2, 2020

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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 ROLLS OUT PROPOSED FSA EARNED TIME RULES

Twenty-three months after passage of the First Step Act authorized the Federal Bureau of Prisons to give earned time credits to inmates who complete programs that have been shown to reduce recidivism, the BOP is finally getting around to adopting rules on how such credits will be rewarded. And, unsurprisingly, the BOP is making Ebenezer Scrooge look like Santa Claus.

scrooge201202First Step focused on assessing each prisoner’s likelihood of recidivism and rolling that assessment into a recidivism and needs assessment system known as PATTERN. The BOP was then to determine which of the programs identified as likely to reduce recidivism each inmate needed. As the inmate completed the programs, he or she would see the PATTERN score – ranging from “high risk” down to “minimum risk” – decrease. To encourage the prisoners to complete the programs, First Step authorized the award of “earned time credits,” equal to 10 to 15 days for each 30 days of programming completed. The earned-time credits can be used for more halfway house, more home confinement, or up to 12 months of early release.

Of course, the devil’s in the details. The language in the Act says:

A prisoner shall earn 10 days of time credits for every 30 days of successful participation in evidence-based recidivism reduction programming or productive activities.

rules201202What exactly does First Step mean by “30 days of successful participation?” The BOP has finally announced proposed rules to define that, and the definition is a doozy.

The proposed rule figures that “30 days” means 30 program days. A “program day” is eight hours, the BOP says. In other words, a 500-hour program would be worth 500 hours/8 hours-to-a-day, or 62.5 program days. Completion of the 500-hour program would award an inmate two months (60 days) of program credit, which is worth 20 days earned time credit for inmates with medium or high recidivism risk, and 30 days credit for inmates with minimum or low risk.

In the BOP, a 500-hour program takes 12-18 months to complete.  That may seem like a fairly substantial commitment for a month more of home confinement. But it is consistent with what we’ve come to expect from the BOP: given a chance to interpret the extent of its authority to be lenient, it invariably interprets that authority in the most chary way possible.

results201202The proposed rule does settle one question which has been coming up often in the last few months: FSA earned time credits may only be earned for successful completion of an Evidence-Based Recidivism Reduction Program and Productive Activity assigned to the inmate based on the inmate’s risk and needs assessment, and only for those successfully completed on or after January 15, 2020.

The proposed rule does not address the procedures for determining whether an individual inmate will have FSA earned time credits applied towards prerelease custody, early transfer to supervised release, a combination of both, or neither. Instead, it only addresses the procedures for earning, awarding, loss, and restoration of FSA credits.

The public may submit comments to the BOP on the proposed rule until January 25, 2021.

Federal Register, Proposed Rule: FSA Time Credits (November 25, 2020)

– Thomas L. Root

COVID Peaks, Vaccine on the Horizon – Update for December 1, 2020

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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 HITS UGLY COVID MILESTONE AS VACCINE IS PROMISED

With yesterday’s numbers, the Bureau of Prisons continues into new  COVID-19 record with 4,792 sick inmates, topping previous records of 3,461 on May 11 and 4,454 on July 23. The inmate death toll hit 157 last week, with one fatality – Louis Rector at FMC Butner – having been declared recovered in July, only to be hospitalized two months later and then to linger for two months before dying.

BOPCOVID201201A record 1,414 BOP staff are sick. COVID is in 126 BOP facilities. Fifteen joints have more than 100 inmates sick, and four have more than 200 COVID cases. The BOP says it has tested 54% of all inmates at least once, with a positivity rate of 29%.

The big news now is about vaccine. The Associated Press reported last week that the BOP would be “among the first government agencies to receive the coronavirus vaccine, though initial allotments of the vaccine will be given to staff and not to inmates, even though sickened prisoners vastly outnumber sickened staff,” citing documents it had obtained from the BOP.  AP said the BOP has “been instructing wardens and other staff members to prepare to receive the vaccine within weeks, according to people familiar with the matter. The people could not discuss the matter publicly and spoke to the AP on condition of anonymity.”

reinfection200831Government Executive reported that the BOP “would provide vaccines to all staff and inmates under the interim plan. Employees and inmates at private contract facilities are not slated for inclusion. In a recent memorandum for staff obtained by Government Executive, the bureau said employees, rather than inmates, would receive ‘initial allocations.’ CDC will determine the size of that allocation. The memo also provided a glimpse into the process federal workers will follow to receive a vaccine from their agencies: staff will follow a specific link that will allow them to register and, once registered, they can set up an appointment at their facility’s health services department.”

The government has not yet approved any vaccine, a necessary step before any doses can be delivered. Several vaccine makers have asked for expedited permission, and CBS reported yesterday that vaccine may be available by Christmas.

Advocates say the federal government should be doing more to ensure vulnerable, at-risk inmates have access to the vaccine as soon as possible. “If true, it’s a disgrace,” David Patton, the head of the federal defender office in New York, said of the Bureau of Prisons plan. “Prisoners are among the very highest-risk groups for contracting COVID-19. The conditions of confinement make social distancing and proper hygiene and sanitation nearly impossible. The government should certainly prioritize prison staff, but to not also prioritize the people incarcerated is irresponsible and inhumane.”

AP said the BOP “has been accused of missteps and scattershot policies since the virus reached the U.S. earlier this year.”

A prime example may be the one reported by WUSA-TV, Washington, DC, last week. Fabian Tinsley died of COVID last April at Butner, but no one told his family Fabian’s niece discovered news accounts of his death when she Googled him in August.

johndoe201201WUSA-TV said, “Officials with the Federal Bureau of Prisons failed to inform Tinsley’s family of his death in April. Staff from the North Carolina facility only notified next-of-kin after reports from the CBS News affiliates in Raleigh and Washington. “I think they thought we wouldn’t care enough, and that’s been the problem,” said Latesha Boyd, Tinsley’s niece. “We have no closure, that’s how I feel.”

The TV station reported that “After the communications breakdown became apparent in August, Boyd said Butner staff called frequently with apologies. Yet the family said they could only describe their current situation as being trapped in a bureaucratic runaround, with no firm details on where to find Tinsley’s body.”

In an October statement from the BOP, “a spokesperson said communication with the family continues,” WUSA-TV reported.

BOP, Inmate Death at FMC Butner (November 23, 2020)

Associated Press, Federal prisons to prioritize staff to receive virus vaccine (November 23, 2020)

Government Executive, Several Federal Agencies to Deliver COVID-19 Vaccines to Employees Directly (November 23, 2020)

CDC, COVID-19 Vaccination Program – Interim Playbook for Jurisdiction Operations (October 29, 2020)

WUSA-TV, 224 days after a DC man died of coronavirus, his family still has no idea where to find his body (November 26, 2020)

– Thomas L. Root

BOP and COVID: The Best of Times, The Worst of Times – Update for November 24, 2020

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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.

INMATES CATCHING COVID, BOP CATCHING HEAT

Last week, we said the Bureau of Prisons was feeling the third wave of coronavirus. The numbers bear us out.

Inmate cases, which have averaged 2,065 active cases a day since Sept 1, hit 3,933 last night. That’s the highest number since the end of July, an increase of 117% since Nov 1 and 16% over a week ago. At the same time, BOP staff cases hit an all-time high of 1,264, up 17% in a week. The virus is again present in all 122 BOP facilities. The BOP has tested 53% of its inmate population, with 28% returning as positive.

BOPCOVID201124

The Dept. of Justice Inspector General reported a week ago that BOP officials made a number of mistakes that hobbled the agency’s ability to control the spread of COVID-19 at FCI Oakdale, Louisiana. The DOJ’s internal watchdog found Oakdale officials “failed to promptly” implement COVID-19 screening protocols, took too long to limit inmate movement and failed to properly quarantine and isolate inmates, among other issues. Specifically, Oakdale lacked adequate personal protective equipment and left inmates with the virus in their housing units for a week without being isolated.

Oakdale was the initial BOP prison to experience a serious COVID-19 outbreak, and chalked up the first of what is now over 150 federal inmate deaths.

Failure201124Predictably, the BOP criticized the report, arguing its officials and staff complied with guidance to screen staff and inmates for COVID, took proper steps to limit inmate movement during the pandemic, and provided proper protective gear and guidance to employees on how to take precautions to protect against the spread of the disease.

Drug manufacturer Pfizer has applied for emergency use authorization for its COVID-19 vaccine from the Food and Drug Administration, to be followed by competing vaccine maker Moderna on December 4, and AstraZenica/Oxford about a month later. An emergency use authorization is a fast-track vaccine authorization that can be processed much more quickly than normal approval. The FDA is expected to take one to three weeks to go through the application and make a decision on issuing the emergency authorization. USA Today reports that vaccine could be approved by the week of December 14.

By the end of December, the government expects to have about 40 million vaccine doses available for distribution. The Pfizer and Moderna vaccines both require two doses given between 21 days apart. The BOP has reportedly told the inmate population that it is working to obtain vaccine for its staff and inmates. However, correctional facilities are currently reported to be included in “phase two” of the vaccine rollout, despite the fact healthcare professionals and prisoner advocates argue that they should be given a higher priority.

“We’re hearing promising news that we are one of the targeted areas to get the first dosage—at least our staff is in the first group, and then our patients with higher risk factors would be next,” said Thomas Weber, CEO of a private company providing medical services to state prisons and detention centers. “However, we have a concern about the availability of enough vaccines and how they’re going to distribute them.”

money160818Finally, 15 members of Congress, all Democrats, wrote to DOJ and the BOP last Tuesday to ask about the changing policies for medical copayments in federal prisons during the pandemic where there have been widespread coronavirus outbreaks. “On March 30, the BOP issued a memorandum waiving the requirement that incarcerated individuals pay ‘copay fee[s] for inmate requested visits to health care providers.’ That waiver expired on October 1, and it is unclear whether that waiver has been extended, given the continued spread of COVID-19 throughout the nation and in federal prisons,” they wrote. “It is also unclear whether the BOP has considered making its copay waiver permanent.”

Office of Inspector General, Remote Inspection of Federal Correctional Complexes Oakdale and Pollock (November 17, 2020)

Reuters, U.S. Justice Dept watchdog: Louisiana prison officials botched COVID-19 pandemic (November 17, 2020)

Atlanta Journal-Constitution, Federal prison in Louisiana left inmates with virus in housing for week (November 18, 2020)

USA Today, When could the first COVID-19 vaccines be given in the US? (November 18, 2020)

Letter to Attorney General William Barr and BOP Director Michael Carvajal (November 16, 2020)

– Thomas L. Root

Third COVID Wave Breaking Over BOP – Update for November 16, 2020

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BOP TRANSFEREES BRING COVID TO FORT DIX, SENATORS SAY

The third wave of COVID-19 sweeping the country apparently does not intend to exempt the Federal Bureau of Prisons. Active inmate cases, which have averaged 1,900 a day since September 1, have shot up last over the last two weeks, hitting 3,163 last Friday. That’s the highest number of BOP cases since the end of July. At the same time, BOP staff cases hit an all-time high of 1,049. The virus is present in 119 of 122 BOP facilities.

BOPCOVID201116

Last week, Government Executive magazine reported that the BOP “has experienced perhaps the worst outbreak of any federal agency per capita, with about 7% of its workforce contracting the virus. All told, more than 2,500 bureau employees have tested positive. Nearly 20,000 federal prisoners have also contracted COVID-19, or about 14% of the federal inmate population.”

The death toll has mounted as well. Three more federal inmates deaths were reported since November 6th, one at USP Tucson and two at the Springfield medical center. Citing a National Commission on COVID-19 and Criminal Justice study, the Washington Post reported last week that “when adjusted for age, sex and ethnicity, the mortality rate in federal prisons is twice that of the general population.”

The BOP has reported that as last Friday that it has tested half of all inmates at least once. The number testing positive inched up a point last week to 26%. One out of four tests has been positive ever since the BOP began reporting testing last spring.

reinfection200831The hottest BOP facilities for COVID-19 last week were USP Tucson (Arizona) with 363 inmate cases, and FCI Fort Dix, New Jersey (233 cases). These were followed by FCI Beaumont Low (Texas), USP Thomson (Illinois), FCI Bastrop (Texas), the FMCs at Butner, North Carolina, and Springfield, Missouri, USP Marion (Illinois), FCI Yazoo Medium (Mississippi), FCI Gilmer (West Virginia), FCI Greenville (Illinois) and FCI Jesup (Georgia), all with 100 or more cases.

The Fort Dix epidemic is especially troublesome, with Congressional criticism raining down on the BOP even as employee unions finger-point. Senators Robert Menendez and Cory Booker (both D-New Jersey) wrote to BOP Director Michael Carvajal last Monday, accusing the BOP of negligently transferring COVID-19 infected prisoners from FCI Elkton to Fort Dix, thus introducing the disease to Fort Dix. The senators said, “It is clear that BOP does not have an effective plan to ensure COVID-19 positive inmates are not transferred between facilities…”

The Philadelphia Inquirer reported last week that “as recently as mid-October, US Attorneys opposing compassionate release motions by Fort Dix prisoners argued that ‘the BOP has taken effective steps to limit the transmission of COVID-19’.” Now, the paper said, “videos purportedly taken by a prisoner inside Building 5812 and circulating among family members show a unit in chaos — debris scattered and trash overflowing — a byproduct of a shortage of staff and healthy inmate workers, according to family members.”

The BOP says all prisoners are quarantined for 14 days and tested prior to being moved. The receiving prison is also to test and quarantine new prisoners for two weeks, which is what Brian Kokotajlo, a BOP union official at Fort Dix, says happened there. He’s skeptical about how things were handled at Elkton. “They said the inmates were tested when they left Elkton, but personally I don’t believe that to be true,” Kokotajlo said. “If they tested them at Elkton, how they made it on the bus and how they made it to us and became positive in a six-hour drive across the state of Pennsylvania, nobody seems to be able to figure that out.”

fingerpoint201116But Joseph Mayle, the Elkton union chief, blamed false negatives produced by COVID-19 rapid testing for infected prisoners being sent to Fort Dix. “My staff here, they’re not going to throw inmates on a bus without testing them,” Mayle said. “If that’s what they’re saying, that’s not what’s happening.”

BOP spokesman Justin Long issued a statement denying that Elkton transfers caused the Fort Dix outbreak. “Contact investigations indicate the infections were not the result of this inmate movement but rather may have originated from the community,” Long said.

In Pekin, Illinois, local residents protested this past weekend, complaining that the BOP is failing to protect inmates from coronavirus and asking the agency to release eligible inmates to home confinement. Dozens of protesters gathering Saturday, “demanding inmate get proper medical care, nutrition and hygiene needed to keep safe from the virus,” a local TV station reported.

The group also alleged that “the BOP’s website is not keeping up-to-date information, saying the 66 confirmed cases within the Pekin prison is a false number,” WMBD-TV reported. “They believe that number is well over 100.”

Washington Post, Prisons and jails have become a ‘public health threat’ during the pandemic, advocates say (November 12, 2020)

Government Executive, Coronavirus Cases Are Spiking at Federal Agencies (November 12, 2020)

Philadelphia Inquirer, COVID-19 outbreak infecting hundreds at Fort Dix is ‘escalating crisis,’ N.J. senators warn (November 10, 2020)

VICE NEWS, Federal Prisons Keep Turning Into COVID Nightmares: ‘Everyone Looks Like Death’ ( November 12, 2020)

WMBD-TV, Pekin community members say federal prison system isn’t taking COVID-19 seriously (November 14, 2020)

– Thomas L. Root

COVID’s a Mess in America… the BOP is No Different – Update for November 10, 2020

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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.

THIRD WAVE BREAKING?

Over the past few weeks, the BOP’s official COVID-19 count has not been climbing with the rest of the nation’s, but late last week, the numbers took off, suggesting a third wave may be breaking over the BOP as well as the rest of the country.

plague200406As of last night, the BOP reported 2,418 sick inmates, up a whopping 24% from the Friday before. There are a record 953 sick staff, up 5% last week. Ominously, six federal inmates died last week, including four at MCFP Springfield (Missouri), one at FCI Big Spring (Texas), and one in a private prison.

The current outbreak at FCI Fort Dix illustrates the virulence of COVID. WHYY Radio reported last week that “in October no inmates tested positive. On Thursday, there were 214 positive cases, according to a report from the Federal Bureau of Prisons. It’s the second-highest amount of active cases out of every system in the country.”

After an inmate complained to a federal court that Elkton prisoners transferred to Fort Dix “were placed in a unit that later had 10 inmates test positive for COVID-19,” a federal judge last week ordered the government to “provide details on how the prison has mitigated the spread of COVID-19.”

The Appeal last week ran an interview with Dr. Homer Venters, who has provided expert testimony in several suits against the BOP on COVID in prisons, most recently at Lompoc. Venters was especially critical of the availability of health services:

All these detention settings have ‘sick call’ and that’s the primary way for people to report COVID symptoms and get care. But when you talk to incarcerated people, they routinely tell you that their sick call requests go unanswered, or they have to submit multiple sick call requests just to get a response, or they may get a response that says, ‘Here’s some Tylenol,’ but it isn’t really an assessment or care for COVID. In some cases, those sick call requests get thrown out. And so we have this group of people who, when they seek care for COVID-19, they must use this process to access care. It’s a system that’s broken.

The current COVID hotspots in the BOP system are Fort Dix, Bastrop, Springfield, Tucson, Thompson and Butner, all with over 100 inmate cases each. As of yesterday, the BOP reports it has tested 48.8% of all inmates. The positivity rate remains at 25.6%.

The Appeal, Coronavirus in Jails and Prisons (November 6, 2020)

WHYY Radio, COVID-19 outbreak inside Fort Dix prison is spreading (November 7, 2020)

Burlington County Times, U.S. attorneys for Fort Dix ordered to detail COVID-19 response; cases at prison top 200 (November 5, 2020)

Memorandum Order, R.24, November 3, 2020, Whiteside v. Fort Dix Federal Prison, Case No 1:20cv5544 (Dist. New Jersey)

– Thomas L. Root