Tag Archives: BOP

ACLU Brings Second FCC Butner Suit Over COVID – Update for November 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.

ACLU CLAIMS BOP COVID TESTING STRATEGY IS ‘INCOHERENT’

A coalition of civil rights groups led by the American Civil Liberties Union filed a class-action lawsuit against the Federal Bureau of Prisons last week over its handling of COVID-19 outbreaks at FCC Butner. The suit seeks an injunction to protect Butner prisoners, especially “vulnerable people… who, because of their medical conditions and/or advanced age, are at higher risk of severe injury or death from COVID-19.”

suit201102The lawsuit alleges that the BOP has “tested too few people at Butner, too infrequently, and too late,” and fails “to separate people who tested positive from those who tested negative for several days after receiving the test results.” The suit claims screening for symptoms has also been sporadic and ineffectual. The claims include allegations of inadequate cleaning and disinfecting procedures to adequately protect the men housed at Butner. As well, the allegations take aim at BOP management of CARES Act home confinement and compassionate release:

Despite direction from the US Attorney General months ago to expeditiously consider medically vulnerable people for home confinement or other release, Defendants continue to oppose motions for compassionate release made by medically vulnerable people, and they have failed to order furloughs or transfers to home confinement with sufficient speed and in sufficient numbers.

FCC Butner, located about 25 miles north of Raleigh, North Carolina, holds nearly 4,000 male inmates, with five facilities: a medical center, a minimum-security camp, a low-security prison and two medium-security facilities.

The civil rights groups filed suit against the BOP last spring, alleging that officials have failed to protect the Butner population. In early June, a federal judge sided with the BOP, agreeing it had “made reasonable efforts” to control the virus.

In another suit, Lompoc prison officials were ordered by a Los Angeles federal judge three weeks ago to expedite the evaluation of more than 120 inmates deemed eligible for home confinement due to their risks of COVID-19, although only 44 have been released since July. Five inmates brought the federal class-action lawsuit last May, seeking alternative confinement after a COVID outbreak at Lompoc infected more than 1,000 inmates and staff. At least four inmates died as a result of the outbreak.

The October 8 order directed the BOP to confirm that all 129 eligible inmates were released to home confinement.

expert160905The BOP had argued there is no specified timeline to release inmates to home confinement and that such release requires a three-judge panel, according to the response included in the Oct. 8 filing. Meanwhile, last Friday the agency blasted a court-ordered report by Dr. Homer Venters, countering with its own expert who concluded that “FCC Lompoc has acted reasonably and diligently in dealing with the COVID-19 pandemic based on the CDC guidance and BOP guidance applicable at the time, including the comprehensive BOP COVID-19 Pandemic Response Plan.” The expert complained that Dr. Venters “consistently bases his critical conclusions on unverified statements that were made to him by unidentified inmates, despite the harsh judicial criticism that he recently received in an Eastern District of New York COVID-19 case for following that unreliable methodology.”

The BOP’s COVID numbers – 1,766 sick inmates as of last Friday – are down 7% from a week ago. But ominously, the number of sick staff continues to climb, hitting 896 on Friday. A month ago, there were 724 sick staff. Nationwide, 75% of all prison and jail staff cases since March have recovered. But only 60% of BOP staff cases have done so, suggesting that BOP staff COVID cases are increasing at a much faster rate than the rest of the country. This is critical, because the staff is the primary means by which COVID is being brought into facilities.

Circumstances surrounding the latest inmate COVID-19 death, Joe McDuffie at El Reno, are concerning. Joe tested negative for COVID on Oct 13. After that, according to the BOP, “he received daily symptom checks and did not express any symptoms associated with COVID-19. On Friday, October 23, 2020, institution staff found Mr. McDuffie unresponsive.” He died later that day.

The BOP says 46% of the inmate population has been tested for COVID. One out of four of those 69,500 tests has been positive.

Hallinan v. Scarantino, Case No 5:20-ct-3333 (ED NC, filed Oct 26, 2020)

The Appeal, Coronavirus in Jails and Prisons (October 28, 2020)

BOP, Inmate Death at El Reno (October 29, 2020)

Santa Maria Times, Lompoc prison officials release 44 inmates to home confinement; more than 120 deemed eligible (October 30, 2020)

Respondents’ Statement, Torres v. Milusnic, Case No 20cv4450 (CD California, October 30, 2020)

– Thomas L. Root

ACLU Sues to Get the Real COVID Story from BOP – Update for October 26, 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.

ACLU SUES BOP OVER COVID RECORDS

The American Civil Liberties Union sued the Federal Bureau of Prisons and Centers for Disease Control and Prevention last week in District of Columbia federal court, demanding information about the government’s response to the risk of COVID-19 in detention facilities it has been seeking since last April.

OPRFOIA180814The ACLU said it “seeks to uncover critical information about the federal government’s response — and lack thereof — to the coronavirus in detention facilities across the country. Based on the limited data available, it appears that the BOP has failed to prevent the spread of the coronavirus in its facilities.” It first sought BOP records relating to COVID-19 in April and sought DOJ and CDC records in July, according to the lawsuit. While the agencies acknowledged the requests, they have yet to provide the ACLU with the documents.

“Although the BOP, HHS, and other offices granted the ACLU’s request for expedited processing, that was a dead letter,” the complaint alleges, “Defendants have failed to produce any records. Meanwhile, the pandemic continues to threaten the people in federal prisons and the communities where they operate.”

That is hardly surprising. Anyone with experience seeking records under the Freedom of Information Act knows that, primarily because the Act exacts scant penalties from federal agencies that violate it. If the choice is between dedicating resources to complying with FOIA and finally turning documents over on the courthouse steps months later, guess which option the agencies will select?

Complaint, ACLU v BOP, Case No 1:20cv3031 (D.D.C., filed Oct 21, 2020)

Vice News, The Trump Administration Is Getting Sued Over COVID Exploding in Prisons (Oct 21)

Indiana Public Media, ACLU Sues Bureau of Prisons Over COVID-19 Record Keeping (Oct 22)

– Thomas L. Root

Adding Family Insult to Injury, BOP-style – Update for October 22, 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.

COVID NUMBER NOT REASSURING… NEITHER ARE BOP DEATH NOTIFICATION PROTOCOLS

As of yesterday, the BOP was reporting 1,750 federal inmate COVID-19 cases in BOP and private prisons (up 6% from last week), 802 staff cases (up 9%), COVID still present in 118 out of 122 facilities, and one more death, for a total of 136. With 44% of all inmates tested, one out of four tests is still coming back positive.

covid19-201022

Just as Wisconsin is now spiking in new COVID cases, FCI Oxford led BOP facilities as of Oct 16th with 409 inmate cases, followed by El Reno (108 cases), Petersburg Medium (89), Tallahassee (88), Big Spring (79), Pekin (74), Leavenworth (73) and Oklahoma City (61). Sixteen more BOP joints have between 10 and 48 cases.

Three days before, the BOP announced the death of a Big Springs inmate, and noted that the facility had 398 inmate COVID cases. Over 300 inmates apparently recovered in merely three days.

The family of Tommy Sisk, the Petersburg inmate who died of COVID October 4, blasted the BOP last week for not notifying them of his death. They found out that their loved one had died when a family friend called them last Tuesday to say he had seen the death reported in a newspaper. That was a full week after the BOP issued a press release about Tommy’s passing.

tears201022Tommy’s brother Wayne Sisk said a representative from FCI Petersburg told him his sister was listed and tried to call her. “What freed up that information,” he asked about the Oct 6 BOP press release, “but they couldn’t free up the information to tell his family and notify them before the newspaper. During the times that we live in now, with COVID and injustices and everything… tell me how much injustice is that?”

As of last weekend, the BOP still had not told the family the location of the body. “They should’ve contacted our family and showed us some respect. We don’t have our brother. We don’t have anything,” Sisk said. “We don’t have our family member.” Perhaps the BOP intends to have Mr. Sisk’s body serve the remainder of his sentence before burial.

The BOP told a Richmond TV station, ““While for privacy reasons we cannot speak about specific circumstances surrounding a particular inmate, we can tell you protocols were followed in the case you reference.”

Of that I have no doubt. Perhaps the protocols should be leavened with a little human decency.

San Angelo Live, Nearly Half of Big Spring Prison Inmates Have COVID-19 (Oct 13)

WFXR-TV, Brother of inmate who died of COVID-19 demands answers: ‘We found out from a news article’ (October 17, 2020)

– Thomas L. Root

BOP Bans – Then Unbans – Newsletters – Update for October 15, 2020 (Revised October 19, 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 TELLS NEWSLETTERS TO HIT THE BRICKS

Last Thursday, the Federal Bureau of Prisons blocked email access to at least three legal newsletters sent to inmates, including the one I have written every week for 58 months.

A little before 6 am, LISA began receiving – one email at a time – 10,219 notices that its newsletter had been banned:
ban201015

Brandon Sample, a well-known attorney whose practice focuses on federal criminal, post-conviction and prison matters, told LISA that he had received notices as well that his newsletter to federal inmates had been banned. Several inmates have reported that additional newsletters had been blocked as well.

Brandon filed suit against the BOP the same day. Because Brandon was seeking a temporary restraining order, he was obligated to first confer with the AUSA assigned to the case. Late Friday afternoon (October 16), the AUSA told Brandon his newsletter had been blocked by mistake – part of an “unrelated investigation” – and it had been restored.

LISA’s newsletter site was unblocked at the same time.

pyrrhicv201019The AUSA reported the BOP was not technically able to restore all of the contacts in the newsletter email lists. Brandon reported that he had lost all of the subscribers in his newsletter email account. LISA lost 10,971 subscribers from a list that had been built over nearly five years.

– Thomas L. Root

BOP Fiddles, COVID Burns – Update for October 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.

HEY, FATSO! YOU’VE GOT COVID-19!

livebutonce201014The Centers for Disease Control and Prevention cranked up its warning about obesity and COVID-19 last week. Last spring, if you had a BMI over 40 (6 feet tall and 295 lbs), you were at risk. At the end of June, that dropped to a BMI of 30+. That made a 6-feet tall guy weighing 221 lbs at risk.

Last week, the link between extra pounds and severe Covid-19 grew stronger as the CDC said that people who are merely overweight, not just the obese, may be at high risk of serious disease from the infection. Now, the risk starts with a BMI of 25. Besides the merely overweight (62% of America), smoking has been added to the risk-factor list.

The BOP, which has provided daily COVID-19 numbers since March 2020, dropped weekend reports a few weeks ago. Last Friday, the agency didn’t bother to update its numbers from the day before. Yesterday.s report had 1,745 sick inmates, 736 sick staff, COVID-19 in 119 institutions (98% of all facilities) and 135 inmate deaths.

The latest to die was Robert Pierce, a 52-year old Big Spring inmate, who fell ill September 18 and died last Friday. Meanwhile, the news media reported COVID-19 increases at USP Allenwood, Petersburg Medium, Raybrook and McDowell.

In a pair of letters to Attorney General William P. Barr and BOP Director Michael Carvajal, Senators Elizabeth Warren (D-Massachusetts) and Richard Durbin (D-Illinois) suggest that the agency’s response to coronavirus outbreaks in federal prisons is failing, and they question the BOP’s reliance on solitary confinement to isolate sick prisoners rather than granting compassionate release.

The Washington Post reported last week that “Federal prisoners, corrections staff, government inspectors and civil rights advocates have complained for months that the BOP’s strategies, when useful, are inconsistently applied. The overall inadequate response is leaving a vulnerable population at risk of infection and creating major vectors for transmission more than seven months into the pandemic.”

The BOP’s COVID death toll “is mounting evidence that efforts to contain the virus within BOP facilities are failing,” Durbin Warren wrote to Barr and Carvajal in one of the Oct. 2 letters, which were viewed by The Washington Post.

plague200406The Post previously reported that prison staff have raised concerns about a lack of personal protective equipment and unsafe workplace conditions — issues that have prompted federal employees to sue the government. According to reports by the DOJ Office of the Inspector General on federal corrections facilities nationwide, persistent staffing shortage has triggered regular lockdowns during the pandemic in which prisoners aren’t allowed out of their cells, are often unable to shower and face more restrictions than if they were in solitary confinement.

Bloomberg, CDC Expands COVID Risk Warning to Include Overweight People (October 8, 2020)

CDC, People with Certain Medical Conditions (October 6, 2020)

BOP, Inmate Death at FCI Big Spring (October 13, 2020)

Harrisburg Patriot, Another big increase in COVID-19 cases at the Allenwood medium-security prison (October 5, 2020)

Roanoke Times, Inmate at federal prison in Petersburg dies of COVID-19; 21 others are infected (October 7, 2020)

Washington Post, Warren, Durbin slam government’s ‘failing’ efforts to contain coronavirus in federal prisons (October 5, 2020)

– Thomas L. Root

BOP Compassionate Release Approval – Vegas Without Comp’d Drinks – Update for October 13, 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.

THE DEFINITION OF FUTILITY

futile201012People seeking compassionate release know that 18 USC § 3582(c)(1)(A) requires that they exhaust administrative remedies first, that is, ask the warden of their facility to recommend that the BOP bring the motion on their behalf and then wait 30 days before filing.

Many prisoners have asked courts to waive the exhaustion requirement as being futile. Courts have uniformly refused, ruling – like the 6th Circuit did last June in United States v. Alam, that the exhaustion requirement “ensures that the prison administrators can prioritize the most urgent claims. And it ensures that they can investigate the gravity of the conditions supporting compassionate release and the likelihood that the conditions will persist. These are not interests we should lightly dismiss or re-prioritize.”

The courts’ confidence in the Bureau of Prisons would be laughable if the stakes were not so high. And a report last week from NBC and The Marshall Project underscores what attorneys, inmates, advocates and experts have long suspected: since March 1, wardens have denied or ignored over 98% of all compassionate release requests.

Of the 10,940 federal prisoners who applied for compassionate release in just the first two months of the pandemic, from March through May, wardens approved 1.4%, or 156. Some wardens, including those at Seagoville and Oakdale, did not respond to any request during those two months, while others deny every request presented to them. Of the 156 approved by wardens, only 11 were approved by the Central Office. Overall approval rate? One-tenth of one percent.

Here’s the breakdown: 84.8% of the requests were denied by wardens. Another 13.7% were not even answered.

Lose200615In other words, you have literally a one-in-a-thousand chance that the BOP will approve a compassionate release request. This is about the same as an inmate’s chance of dying from COVID-19 (0.09%). On the other hand, 16,000 people have received compassionate release (slightly more than 1% of the BOP population).

Notable pullouts from the data: At Elkton, an early COVID hot spot (with more than 900 cases and nine deaths), the warden denied 866 out of 867 requests for compassionate release. At FCI Terminal Island, 694 prisoners had tested positive by the end of May, the warden approved five of the 256 compassionate release requests filed between March and May.

A BOP spokesman told The Marshall Project that “we can share that the BOP has continued to process compassionate release requests as directed by the First Step Act and agency policy.”

United States v. Alam, 960 F.3d 831 (6th Cir. 2020)

NBC News/The Marshall Project, Thousands of Sick Federal Prisoners Sought Compassionate Release. 98 Percent Were Denied. (October 7, 2020)

Rochester, Minnesota, Post-Bulletin, Cases Continue in Federal Prison, Compassionate Release Hard to Get (Oct 9)

– Thomas L. Root

Don’t Believe Us… Check COVID Numbers for Yourself – Update for October 6, 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.

RUNNING THROUGH THE NUMBERS

Active inmate COVID cases in the Bureau of Prisons reportedly fell 20% last week, from 2,080 to 1,670. But the number of sick staff – who are the ones bringing the disease in from the community and taking it back out – increased again, going from 703 to 726. Likewise, the number of institutions with active cases went from 116 to 118.

OIGgraph201006Speaking of numbers, the Dept. of Justice Office of Inspector General last Thursday announced a new interactive dashboard with the most comprehensive data yet on the BOP’s COVID-19 cases, deaths, and testing results. The dashboard provides daily graphs and metrics on active and recovered cases for staff and inmates, and on COVID-19 deaths staff and inmates. The data are aggregated for the entire BOP as well as broken down by all 122 individual facilities. They also show testing trends by facility, and provides information on the number of confirmed COVID-19 cases in the county in which a selected prison is located.

The OIG data represents a substantial reference for people filing compassionate release motions. As the Appeal noted last Friday, “Bureau of Prisons facilities have seen some of the largest COVID-19 outbreaks since the start of the pandemic and the department has been criticized for lacking a coherent virus response plan.” The OIG data help make that point.

reinfection200831Some of the latest criticism of the BOP’s COVID response came in a filing a week ago in a suit by Lompoc inmates against the Bureau. Dr. Homer Venters, an expert in epidemiology appointed by the federal court to report on conditions at Lompoc, filed a report criticizing the institution’s use of temperature only (without noting symptoms) to screen for COVID, its quarantining of inmates in punitive conditions in the SHU, lack of effective infection control in housing areas, and a nonresponsive sick call and chronic care system.

In San Diego, where the BOP’s detention center has had 368 inmate COVID-19 cases, a local newspaper reported last week that “one key decision that appears to have facilitated the spread of the virus within the facility happened when a local hospital recommended that instead of bringing an inmate in for a procedure, medical professionals do it at the jail with phone support from the hospital. The inmate was brought to the hospital regardless, and wasn’t quarantined upon his return. Soon, he and the inmates around him tested positive for the virus.”

crazynumbers200519Outbreaks continue to rage in some locations. A full 77% of inmates at FCI Waseca have contracted COVID-19. As of last Friday, 143 women were still sick. At nearby FMC Rochester, 25 inmates currently have COVID. The prison was clear of the virus just a few weeks ago after an August outbreak sickened more than a dozen inmates. Numbers remain high at Big Spring, Oxford, Coleman, Oklahoma City, Forrest City and Allenwood.

EMS1, a publication for first responders, last week called on the President to “direct the Federal Bureau of Prisons to reduce movement of offenders between facilities, minimize the intake of non-violent offenders, and ensure corrections officers have necessary PPE to prevent further spread of COVID-19 within our nation’s prisons. COs are at high-risk for on-duty exposure and can’t perform their important duties if they are in fear of bringing COVID-19 home to their spouses and children.”

In Virginia, Brian Shoemaker, a USP Lee corrections officer and union president, said Tuesday that the union is concerned about transfers of COVID-19-positive inmates to the prison in September. Shoemaker said that seven inmates brought to the prison since last week tested positive for COVID-19. Two positive inmates arrived last week, he said, and five more positive inmates arrived Monday night. “Institutions in the bureau are eaten up with (COVID-19) and they’re sending cases into a COVID-free prison population,” Shoemaker said.

DOJ Office of the Inspector General, Interactive Dashboards Relating to COVID-19 within the Federal Bureau of Prisons (October 1, 2020)

The Appeal, Coronavirus in jails and prisons (October 2, 2020)

F.R.Ev. 706 Report of Dr. Homer Venters, Torres v, Mulusnic, Case No. 20cv4459 (C.D.Cal, filed September 25, 2020)

Santa Maria Times, Screening shortcomings, lack of timely care identified in federal report on Lompoc prison response to COVID-19 (September 30, 2020)

Minneapolis, KTTC-TV, 70% of inmates at Waseca prison have contracted COVID-19, FMC outbreak reaches new high (October 1, 2020)

EMS1, President Trump, a get-well letter (October 2, 2020)

Voice of San Diego, Morning Report: Key Decisions Fueled COVID’s Spread in Downtown Jail (September 28, 2020)

Johnson City Press, Virginia legislators, prison staff union concerned over inmate COVID-19 cases (September 30, 2020)

– Thomas L. Root

Barr Declines to Celebrate Festivus – Update for September 29, 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.

ATTORNEY GENERAL TO CONGRESS: ‘DROP DEAD’

Jerry Seinfeld popularized the formerly-obscure anti-holiday Festivus, which included “The Airing of Grievances,” an event which immediately follows the festival feast. Attorney General William Barr effectively announced last week that for the House Judiciary Committee, Festivus came early this year.

festivus200929On September 21, the Justice Department declined a congressional oversight committee’s request to hear from various DOJ officials, including BOP Director Michael Carvajal to discuss  the BOP’s COVID-19 response. The reason? The Department has accusing Democrats of having “squandered” their opportunity to get relevant information from Attorney General William Barr this summer by instead using their time to “air grievances” instead of ask questions.

The House Judiciary Committee had asked that Eric S. Dreiband, the head of DOJ’s Civil Rights Division, appear this month to discuss the division, and that Carvajal and Donald Washington, the director of the U.S. Marshals Service, appear for an oversight hearing on Oct. 1.

Barr told Committee Chairman Jerrold Nadler (D-New York) that in July, Barr had been advised that he could be asked about police misconduct, voting rights, the coronavirus and federal prisons, and the civil unrest this spring and summer. But, Barr complained, when he appeared before the committee in July  to discuss those issues, but Democrats were more interested in “scolding and insulting” him.

meantome200929“Having squandered its opportunity to conduct a meaningful oversight hearing with the attorney general,” the letter said, “it remains unclear how further public spectacles with other department officials would now — a mere 14 legislative days since the attorney general’s hearing — advance the committee’s legitimate oversight efforts.”

Democrats and their allies argued after the hearing that Mr. Barr would not have answered their questions in good faith had they let him respond, and that he would have filibustered and wasted the time. Better, they said, to use the time to air their grievances.

DOJ argued to Nadler that this did “preciously little to advance any legitimate interest” because the committee as a result of this tactic learned no new information.

Meanwhile, several members of Congress from Virginia demanded answers from the BOP about prison conditions amid the pandemic. Senators Mark Warner (D) and Tim Kaine (R), along with Rep Morgan Griffith (R) are among those behind a letter sent last Tuesday to Director Carvajal.

The lawmakers are disturbed at reports of a lack of personal protective equipment and diminished quality of life for the incarcerated at USP Lee and FCC Petersburg. The letter said at least one prisoner who tested positive for COVID-19 was transferred to USP Lee, which they fear could cause a coronavirus outbreak in Lee County. The letter also alleges Petersburg inmates are being denied showers and workers continue to be denied lunch breaks.

control200511Carvajal responded Wednesday, claiming in a letter that both FCI Petersburg and USP Lee have “ample supplies of Personal Protective Equipment (PPE)” that includes face coverings, N95 respirators, gowns and gloves, and other sanitation equipment. The letter did not cite specific numbers.

“Indeed, the Bureau has ensured that all institutions nationwide have ample quantities of PPE, and has also established strategic stockpiles in each of our six regions where PPE can be drop-shipped within one day to any institution that might need additional supplies,” Carvajal wrote in the letter, a copy of which was provided to The Progress-Index.

The Virginia delegation lawmakers also wrote to the DOJ inspector general last Friday, asking that the IG include USP Lee and FCC Petersburg in its remote inspection list. “Our offices have received numerous reports from employees and families of incarcerated individuals regarding the spread of COVID-19 and allegations of deteriorating health and safety conditions within both facilities,” the letter said. “These concerns have been raised multiple times by several of our offices with BOP, and we remain deeply troubled by conditions at the two Virginia correctional facilities,” wrote the lawmakers… Many of our offices have received reports that – despite denials from BOP – cases are increasing and inadequate steps have been taken to limit transmission at this facility.”

prisonfood200919

In their letter, the lawmakers also note that they have received disturbing reports of diminished quality of life for inmates because of the COVID-19 lockdowns, including reports of spoiled food and reduced access to recreation, education, and other essential facilities.

The New York Times, Justice Dept. Denies House Panel’s Request for Officials to Appear After Combative Barr Hearing (September 22, 2020)

Letter from DOJ to Chairman Jerrold Nadler (September 21, 2020)

WCYB-TV, Bristol, Virginia, Federal lawmakers demand answers on COVID-19 conditions in Virginia prisons (September 23, 2020)

Petersburg, Virginia, Progress-Index, Director refutes claims by lawmakers about inadequate PPE at Petersburg federal prison (September 23, 2020)

Augusta Free Press, Virginia leaders urge DOJ to include Virginia correctional facilities in remote inspections (September 26, 2020)

– Thomas L. Root

2nd Circuit Declares “Open Season” for Inmates Seeking Compassionate Release – Update for September 28, 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.

2ND CIRCUIT REINVENTS COMPASSIONATE RELEASE TO UNLEASH JUDGES’ DISCRETION

The government has been fighting 18 U.S.C. § 3582(c)(1)(A) compassionate release motions hammer and tong ever since inmates won the right to file such motions themselves in the First Step Act. (Before that, only the BOP could file such a compassionate release motion, and – unsurprisingly – the BOP had little interest in doing so, but that’s another story).

compassionaterelease190517A great example of government hard-heartedness: Reason magazine reported last week that the U.S. Attorney in Miami “unsuccessfully tried to argue that an 80-year-old inmate serving a life sentence for marijuana offenses shouldn’t be released because COVID-19 is just ‘one more way to perish in prison’.”

U.S. District Judge Donald Graham disagreed, granting compassionate release to an inmate – who was 27 years into his life sentence – and was wheelchair-bound by arthritis and heart disease. Reason cited the Miami case as an illustration of its point that while the Attorney General has urged the BOP to use compassionate release, home confinement, and other measures to get elderly and at-risk inmates out of federal prison, “the rollout of Barr’s directive has been maddeningly inconsistent…”

Reason quoted FAMM president Kevin Ring as saying, “Title 9 of the U.S. Attorney’s Manual governs criminal proceedings, and there is no provision there that requires you to be an asshole.”

compassionate200928Not that that has stopped the government. One recurring government argument against compassionate release is that U.S.S.G. § 1B1.13 only lists four reasons for compassionate release. If you don’t fit into reasons (1) through (3) – and hardly anyone does – you have to rely on the fourth, which says, “As determined by the Director of the Bureau of Prisons, there exists in the defendant’s case an extraordinary and compelling reason other than, or in combination with, the reasons described” in the other three reasons.” The government has argued that for any reason other than an inmate’s terminal illness (such as having a COVID risk factor), a court cannot grant compassionate release unless the BOP has itself made the motion. “A sizable minority” of courts have agreed.

Last week, the 2nd Circuit drove a stake through the heart of that argument. Jeremy Zullo sought compassionate release. The court denied him, ruling that his reasons – sentence unfairness, rehabilitation and government violation of his plea agreement – had not been found to be “extraordinary and compelling” under 18 U.S.C. § 3582 by the director of the BOP, and thus could not support a sentence reduction.

The Circuit reversed, holding that § 1B1.13 does not apply to post-First Step sentence reduction motions:

Application Note 4 says that ‘[a] reduction under this policy statement may be granted only upon motion by the Director of the Bureau of Prisons pursuant to 18 U.S.C. § 3582(c)(1)(A). And we conclude that after the First Step Act, this language must be read not as a description of the former statute’s requirements, but as defining the motions to which the policy statement applies. A sentence reduction brought about not ‘upon motion by the Director of the Bureau of Prisons”’ is not a reduction ‘under this policy statement.’ In other words, if a compassionate release motion is not brought by the BOP Director, Guideline 1B1.13 does not, by its own terms, apply to it. Because Guideline 1B1.13 is not “applicable” to compassionate release motions brought by defendants, Application Note 1(D) cannot constrain district courts’ discretion to consider whether any reasons are extraordinary and compelling.

compassion160124This holding is nothing short of astounding, sweeping away much of the compassionate release jurisprudence that has been written in the last 20 months. It will likely open compassionate release motions to people who have compelling arguments, but not claims that can be pigeonholed into the four categories in U.S.S.G. § 1B1.13.

Reason.com, Federal Prosecutors Argue COVID-19 Is Just ‘One More Way to Perish in Prison’ (Sept 25)

United States v. Brooker, Case No. 19-3218-CR, 2020 U.S. App. LEXIS 30605 (2d Cir. Sept 25, 2020)

– Thomas L. Root

The Ugly Gets Uglier in Coleman Sex Assault Suit – Update for September 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.

FLORIDA NEWSPAPER REPORTS COLEMAN GUARDS WHO SEXUALLY ABUSED FEMALE INMATES WERE NOT PROSECUTED

Hey, all you male predators: Want a job where you can freely sexually assault women? And retire with fat benefits (and a nonprosecution agreement)? Have we got an opportunity for you at the BOP!

inconceivable170817In a story published last week, The Tampa Bay Times reported that the government admitted in a court filing that six of eight COs named in a civil suit by 15 current and former female inmates at Coleman engaged in sexual misconduct, but were not prosecuted, but rather allowed to resign or retire. Some are still getting federal retirement benefits.

The suit contends the Coleman prison was a “sanctuary” for abusers. In some cases, the women allege, the abuse lasted for years. The women, who range in age from 26 to 59, were threatened if they didn’t comply, the suit maintains.

Tampa Bay Times, No consequences after Florida officers admit to sexually abusing inmates, lawsuit says (September 17, 2020)

– Thomas L. Root