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Is BOP COVID-19 Climbing Again – Update for September 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-19: NEW REASONS TO BE VERY AFRAID

The Federal Bureau of Prisons once again gained nothing last week in its fight against COVID-19. The number of inmates sick with the hovered all week between 1,915 and 2,045, and last night, hit 2,076. The number of sick staff started climbing again, too, from 631 a week ago to 669. The number of BOP facilities with the virus climbed as well to 117, a whopping 95% of all institutions. Ominously, the number of dead inmates jumped from 125 to 130.

The increase is consistent with concerns that the nation is in for another coronavirus increase in the coming days. And just in time for the fall spike.

The BOP has done enough COVID-19 tests as of last night to test 37% of the BOP inmate population. The percentage of tests that are positive remains 25%.

BOPInmatcases

One of last week’s deaths is especially troubling. On June 1, FCI Butner inmate Ricky Miller tested positive for COVID-19. A month later, he was tested again and declared to be recovered. Two months later, on Sept 9, Ricky developed shortness of breath and leg edema, and was hospitalized. The hospital found that he had COVID-19. He died a day later.

The timing suggests that Ricky caught COVID twice within a few months. If that is so, then the idea that having the disease once confers immunity against getting it again is cast into doubt. And that could mean that COVID-19 will remain a risk until a vaccine is available for inmates.

This comes as new research released last week suggests that the coronavirus can sometimes hijack brain cells, using the cells’ internal machinery to copy itself.

The research, which has not yet been published in a peer-reviewed journal, provides evidence that the virus can directly infect neurons. Although the coronavirus has been linked to various forms of brain damage, from deadly inflammation to brain diseases known as encephalopathies, all of which can cause confusion, brain fog and delirium, there was little evidence of the virus itself invading brain tissue until now.

imageScientists at Oak Ridge National Labs in Tennessee announced last week that supercomputer analysis of COVID-19 suggests that the virus triggers a “bradykinin” storm in the body. Bradykinin is a chemical that regulates blood pressure. The researchers found that some people with the coronavirus may produce it in extreme excess, according to Business Insider, throwing major systems — including respiratory, gastrointestinal, and neurological pathways — off balance.

death200330The theory aligns with researchers’ growing view of the coronavirus as a vascular disease instead of a respiratory one. Research has shown that COVID-19 can lead to blood clots, leaky capillaries, and inflamed blood vessels — which is why some patients may experience heart damage or stroke. “We were really scratching our heads for a while, how does this disease have this darn broad set of symptoms across lots of different organ systems?” Dr. Daniel Jacobson, the lead researcher behind the supercomputer study, told Business Insider. “As we looked at the effects of bradykinin, our model was that this virus can affect several different types of tissues, several different organs.”

Meanwhile, the BOP faces new eruptions of COVID-19 at USP Leavenworth, as well as continuing crises at Big Spring, San Diego, Coleman, Waseca and Manchester.

BOP, Inmate Death at FCI Butner (Low) (Sept 17)

Livescience, The new coronavirus can infect brain cells, study finds (Sept 13)

Business Insider, A supercomputer found a promising theory about why COVID-19 cases go downhill fast. It even explains the bizarre range of symptoms (Sept 13) 

Hays, Kansas, Post, Leavenworth tops all federal prisons in COVID-19 cases (Sept 15)

– Thomas L. Root

Six Months Later, BOP Making No Progress on COVID-19 – Update for September 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.

COVID-19 GRINDS ON

You’d think, reading enough BOP blandishments about its “Action Plan” to address the COVID-19 pandemic that today, six months after the pandemic began, we’d be doing better. Instead, thehe number of inmates sick with the virus climbed above 2,000 for the fourth time (May 5, June 3, June 7 and July 6), standing last night at 2,033, up 4% from last week’s 1,947. The number of sick staff has fallen 2%, from 643 to 631. The number of facilities with outbreaks has increased by two, from 112 to 114, representing 93% of all institutions (an all-time high).

BOPSickInmates200913

The BOP has done enough COVID-19 tests as of last night to test 36% of the BOP inmate population, if the BOP were testing each inmate once (which it is definitely not doing). Twenty-five percent of all tests are positive for COVID.

The Sentencing Resources Counsel for the Federal Defenders organization last week issued a blistering review of the BOP’s COVID-19 response, quoting Joe Rojas, a BOP employee and regional vice president of the American Federation of Government Employees Council of Prison Locals. “They’re making the virus explode.” The report identifies 19 BOP inmates “who died in BOP custody after filing —and in some cases, even after being granted—requests for release” and note that “at least four individuals — Adrian Slarzano, Gerald Porter, Robert Hague-Rogers, and Marie Neba — have died of COVID-19 after either testing negative or after BOP erroneously pronounced them ‘recovered’.” It noted the Washington Post’s description of prison response to COVID-19 as exemplifying “a culture of cruelty and disregard for the well-being of incarcerated people,” and described FMC Carswell, a women’s medical facility, as a “house of horror.”

plague200406The report observes that because of the First Step Act of 2018, inmates may file their own motions for compassionate release, but it complains that the 30-day mandatory exhaustion period before filing, “coupled with DOJ’s routine opposition, prevents vulnerable defendants from obtaining critical relief.” Significantly, the Report notes that “based on a survey of defense attorneys representing clients across the country, we are not aware of a single BOP-initiated motion for compassionate release based on heightened risk of severe illness from COVID-19 infection.”

Things are unlikely to improve in the coming months. The Institute for Health Metrics and Education (part of the University of Washington), predicts that the daily US death rate, “because of seasonality and declining vigilance of the public, will reach nearly 3,000 a day in December. Cumulative deaths expected by January 1 are 410,000.” Current deaths stand at 197,000. this is 225,000 more deaths from now until the end of the year.

To make matters worse, prisons are bracing for simultaneous outbreaks of the flu and COVID-19 as the weather turns colder. “The flu regularly spreads through prisons and jails in the US for some of the same reasons that COVID-19 does,” the Verge reported last week. “The facilities pack vulnerable people in close quarters, with limited access to soap or other ways to protect themselves against an infectious disease. Handling a single outbreak is already a struggle in these places, which often don’t do enough to protect the health of the people living in them. Now, they may have to handle two.”

plagueB200406Flu shots are offered to all BOP staff and older and health-compromised inmates, “but those guidelines don’t mean most inmates in the US get flu shots; outbreaks regularly happen in prisons where most inmates aren’t vaccinated.”

In the continuing and deadly game of COVID-19 whack-a-mole, the BOP is battling major outbreaks (over 100 cases) at FDC San Diego, Big Spring, USP Leavenworth, Coleman, Petersburg Low and Victorville. Other significant infections are going on at FTC Oklahoma, Waseca, FCI Miami, Forrest City and FDC SeaTac.

A Seattle-area newspaper published a story last week alleging that a BOP CO came to work one day in August with a fever and headache, spreading the virus throughout the facility before his shift ended. The paper said FDC SeaTac violated its own protocols of taking every staff person’s temperature before each shift, thus letting the coronavirus into the facility. As of last night, FDC SeaTac reported 46 sick inmates and seven sick staff.

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CoreCivic, the private prison operator that runs facilities holding immigration detainees and thousands of federal prisoners, is getting grilled as well. New Mexico’s congressional delegation wrote to ICE, Marshals and CoreCivic last month about conditions in Cibola County Correctional Institution, a CoreCivic immigration detention prison. CoreCivic took troublingly long to realize that it had “a massive outbreak in its facility endangering the safety of inmates, detainees, staff and the community,” the delegation said, noting that the state Department of Health had to direct CoreCivic to conduct mass testing. The delegation was also concerned that “correctional officers working at the Cibola facility are not wearing adequate [personal protective equipment] when escorting COVID-19 positive inmates into the local hospital.”

Neither any of the agencies nor CoreCivic has responded.

Sentencing Resource Counsel for the Federal Public Community Defenders, The COVID-19 Crisis in Federal Detention (Sept. 9, 2020)

The Verge, Prisons battling COVID-19 face another disease threat this fall (Sept. 11, 2020)

IMHE, Model Updates for Sept. 3, 2020

South Seattle Emerald, SeaTac Federal Detention Center Exposed Prisoners to the Coronavirus by Allegedly Failing to Follow Coronavirus Protocols (Sept. 7, 2020)

Santa Fe New Mexican, Prison’s virus outbreak brings fear to rural area (Sept. 12, 2002)

– Thomas L. Root

 

COVID Deadlier in Prison (No Surprise There) – Update for September 11, 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-19 THIS WEEK

corona200313The reopening of visitation, even with the restrictions the Federal Bureau of Prisons anticipates, suggests that the BOP is getting a handle on COVID-19. But the numbers hardly suggest that. As of last night, 1,834 inmates were sick, about the same as a week ago. Sick staff remained at 648, and only one additional inmate died during the week, bringing the total to 125. But COVID-19 remains stubbornly present in 113 institutions, 91% of Bureau of Prisons facilities, one more than a week ago.

A disturbing report from the Council for Criminal Justice issued last week found that the COVID-19 mortality rate within prisons is 61.8 deaths per 100,000 inmates, twice that of the general public mortality rate, even adjusted for the sex, age and race or ethnicity of those incarcerated. The rate of COVID-19 cases reported by state and federal prisons is nearly 7,000 cases per 100,000 people in prison, more than four times the rate of confirmed cases per 100,000 US residents. Geographically, prisons with the highest number of COVID-19 cases are those located in the southern region of the U.S., and in prisons with over 1,000 inmates. The highest COVID-19 mortality rates come from large prisons and those in the midwest. Overall, the BOP COVID mortality rate is twice that of the general population.

A Minnesota TV station reported last Friday that Ambjar Anderson, the chief steward of the BOP staff union at FCI, told reporters that a month ago “the prison received a couple of buses of inmates. One bus was mostly comprised of positive COVID-cases.”

distancing200911
“We’ve had the proper PPE in place and that’s what helped us mitigate things so far,” Anderson was quoted as saying, but “it’s really hard when the Bureau sends a busload of them. The numbers – it’s spreading – because it’s a prison and it’s hard to social distance.”

Anderson told the station that “we have staff who have families and communities that they are living in and going to and they care about and they don’t want to pass it around to everyone, yet now it’s spreading in our institution.”

A US Sentencing Commission study of the first year of the First Step Act, released last week, reported that 145 motions seeking compassionate release were granted through the end of September 2019, a five-fold increase from fiscal year 2018. Two thirds were filed by the defendant, one third by the BOP. The average length of the sentence reduction was 68 months in fiscal 2018; 84 months in 2019. The average months of time served at the time of release also increased from 70 months to 108 months.

judge160229No stats are yet available for the COVID-19 series of compassionate releases. However, last week a Colorado Politics review of 42 court opinions issued between March 1 and August 31 the District of Colorado found that only in five coronavirus-related instances did a judge agree to “compassionate release.” Two judges who oversaw half of the requests did not grant a single release. One of them contended that an inmate who contracted COVID-19 in prison should remain there so as not to infect others.

Council on Criminal Justice, COVID-19 in State and Federal Prisons (September 2, 2020)

KIMT-TV, Rochester, Minnesota, Outbreak Concerns at FCI Waseca (September 4, 2020)

US Sentencing Commission, The First Step Acct: One Year of Implementation (Aug 31)

Colorado Politics, Federal judges in Colorado granted 12% of pandemic-related early release requests (September 1, 2020)

– Thomas L. Root

Visits Are Back… Sort Of – Update for September 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.

JAIL-STYLE VISITS ARE BETTER THAN NO VISITS AT ALL

The Bureau of Prisons announced last week that visitation at federal prisons will resume by October 3rd, but that all visits will be county jail-style: non-contact, and social distancing between inmates and visitors will be enforced with plexiglass or similar barriers, or physical distancing. Inmates in quarantine or isolation will not allowed visits.

jailvisit200908The BOP plan will permit every inmate up to two visits a month. Visitors will be symptom-screened and temperature-checked, and both inmate and visitor must wear masks. Tables, chairs and other “high-touch” surfaces will be cleaned following the completion of visiting each day, the BOP said.

Kevin Ring, president of FAMM, said the BOP’s action represents a “first step” for anxious families who have gone months without seeing loved ones. But he said the proposed restrictions, particularly the prohibition on physical contact, will be “difficult.”

Leaders of BOP employees’ unions think the visits will be difficult, too, but for different reasons. They question the timing of the decision, inasmuch as it’s being instituted just as flu season begins and – experts predict – the coronavirus pandemic may worsen again. Some suggest the BOP is opening “Pandora’s box.”

In order to ensure inmates all get at least two visits per month, visitation days could occur seven days per week, according to Aaron McGlothin, the union leader for employees at FCI Mendota, California. That means more risks for exposure for staff, he said.

pandora200908“I’m seeing a lot of anger,” said Joe Rojas, the Southeast regional vice president for the national prison union. “We’re coming to the flu season, there’s still a pandemic and then they’re putting up visiting.” Rojas said he knew visitation was important to inmates, and he does not want to remain closed to visits. But “this is important for keeping them safe,” he said.

McGlothin said the BOP should try other methods first, such as allowing inmates to use Zoom or Skype to video chat.

At the same time, questions are now being asked about the longer-term psychological effects of pandemic restrictions on prisoners. Elizabeth Kelley, an attorney and author who has written two books on mental illness and prison, told Forbes magazine that she is concerned that prolonged lack of visitation, along with other COVID-19 limitations, may contribute to a spate of mental illnesses among inmates. “Someone who does not have diagnosable mental illness before going to prison,” Kelley said, “may very well develop one during the pandemic because of profound anxiety, depression and later PTSD caused by the trauma associated with the COVID-19 conditions in federal prison.”

BOP Press Release, Bureau to Resume Social Visitation (September 1, 2020)

USA Today, Federal prisons resume visitation in October, 7 months after COVID-19 forced suspension (September 1, 2020)

Impact 2020, Federal prisons are lifting COVID-19 visitor restrictions — and workers are worried (September 3, 2020)

Forbes, Mental Fatigue, Anxiety and Hopelessness, Welcome to Today’s American Federal Prison Experience (August 28, 2020)

– Thomas L. Root

A Depressing COVID “New Normal” At BOP – Update for August 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.

COVID-19 SLEEPERS

Is this the new normal? A baseline of 1,500+ COVID-19 inmates, flareups at places where COVID hasn’t gained a foothold before?

As of last night, 1,717 inmates have COVID, up 9% from last week. Sick staff numbered 661, up 5% from a week ago. Two more inmates died, bringing the total to 124, and COVID-19 was present in 112 prisons, 90% of the Bureau of Prisons’ facilities.

BOPStaff200831

Hidden in the data are two disturbing “sleepers.” First, the BOP cannot control COVID-19 among staff. Since hitting a low of 133 sick staffers on June 26, the number of BOP employees COVID-19 has steadily climbed, and is now up 500% in two months.

Perhaps more concerning, only a few days after Hong Kong researchers reported that someone who had recovered from COVID-19 caught it again, a study to appear in The Lancet reported last Thursday that a 25-year old Nevada man had become reinfected as well. He first tested positive for COVID-19 in mid-April, then recovered, but got a more severe case in late May.

Then there is Marie Neba, an inmate at FMC Carswell. She tested positive for COVID-19 on July 3rd. “On Tuesday, August 4, 2020,” according to a BOP press release, “Ms. Neba was considered recovered by medical staff as determined by CDC guidelines.” But eight days later, she was hospitalized coronavirus. She died last Tuesday.

reinfection200831This is not a first. Last May 10th, FCI Terminal Island declared inmate Adrian Solarzano, who tested positive for COVID-19 in April, to be “recovered following the completion of isolation and presenting with no symptoms… in accordance with [CDC] guidelines.” Five days later, according to a BOP press release, Mr. Solarzano was hospitalized for the COVID-19 he no longer had. He died on May 24th.

These cases suggest one of three things, none of them good. Either (1) reinfection of recovered COVID-19 patients has been going on far longer than scientists know; or (2) the CDC recovery guidelines are defective; or (3) the BOP is too quick to declare people cured.

Meanwhile, unrest among BOP staff and inmates continues. The Washington Post reported last Monday that Kareen Troitino, president of the Miami correctional officers’ union, “acknowledged that prisoners and guards don’t always find themselves on the same team; but in a pandemic, everyone’s fates are intertwined. ‘All of us are trying to survive,’ Troitino said. ‘Your health affects me, and vice versa. Inmates and staff, we do not feel safe’.”

control200511Troitino told the Post that “the virus has spread so efficiently through federal facilities because of inconsistent protocols that are almost always reactive rather than preventive… prisoners were only getting tested if they had a fever — a testing threshold that hobbled the early months of the U.S. coronavirus response on the outside, before it spread to prisons.”

“The strain of the virus we got in the facility shows no fever,” Troitino told the Post. “Most inmates complain of extreme low energy, a headache, can’t get out of bed, vomiting, diarrhea.”

As of last night, the BOP has administered enough tests that – if only one to an inmate– would only cover a third of all BOP prisoners. One out of those four tests is coming back positive or COVID.

Latest BOP COVID-19 hotspots, in addition to all of the ones mentioned before, include FDC Seatac and FMC Rochester.

Japan Times, First documented coronavirus reinfection reported in Hong Kong (August 25, 2020)

NBC, COVID-19 reinfection reported in Nevada patient, researchers say (August 28, 2020)

The Lancet (preprint), Genomic Evidence for a Case of Reinfection with SARS-CoV-2 (August 27, 2020)

BOP Press Release, Inmate Death at FMC Carswell (August 26, 2020)

BOP Press Release, Inmate Death at Terminal Island (May 27)

Washington Post, Prisoners and guards agree about federal coronavirus response: ‘We do not feel safe’ (Aug 24)

– Thomas L. Root

Prisons Not Testing Right For COVID, CDC Says – Update for August 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.

BOP LOSING AT WHACK-A-MOLE

whack200602Not quite three months ago, Bureau of Prisons Director Michael Carvajal confidently told the Senate Judiciary Committee, “at this point, we have more recoveries than new infections. And I believe that this shows that we are now flattening the curve.”

What is being “flattened” is the BOP’s response to the pandemic.

Twelve weeks later – after inmates spiked July 26 at 4,413 – the BOP’s numbers have stopped falling, and in fact increased slightly. As of Tuesday night, 1,597 inmates were sick, up 8% from last week. Sick staff numbered 638, up 11% from a week ago, four more inmates died, bringing the total to 122, and COVID-19 was present in 109 facilities, 89% of BOP facilities.

Complaints continued last week about the BOP’s handing of the pandemic continue, mostly from staff. When the correctional officer union president at USP Thomson (Illinois) found out he was COVID-19 positive, the 20th BOP staffer there to come down with the virus, he told ABC news he had to find an independent testing site on his own. “Testing for staff isn’t available at the prison but they test inmates for COVID-19 at the prison,” ABC quoted him as saying. “Staff also can’t get tested due to being forced to work double 16-hour shifts almost on a daily basis.”

BOPCOVID200826

Meanwhile, the Centers for Disease Control and Prevention issued a study last week that looked at 15 prisons, including five unidentified BOP facilities. The CDC found that mass testing at the facilities “suggests that symptom-based testing underestimates the number of COVID-19 cases in these settings. Mass testing resulted in a median 12.1-fold increase in the number of known infections among incarcerated or detained persons in these facilities, which had previously used symptom-based testing strategies only.” Symptom-based testing, of course, is the preferred BOP approach, in which only inmates with symptoms get tested.

Additionally, the study found that “in two federal prisons, all persons who had tested negative during mass testing events and had subsequently been quarantined as close contacts of persons testing positive were retested after 7 days. At retesting, 20.5% of persons in BOP prison 2 and 26.8% in BOP prison 3 had positive test results.”

As of last night, the BOP had still only conducted enough tests to cover 31% of the BOP population, with 26% of those tests coming back positive.

The failure of symptoms-only testing is illustrated in the whack-a-mole problems the BOP faces. Besides USP Thomson, the BOP is facing outbreaks at FCC Petersburg (Virginia), FDC San Diego and FCI Victorville in California, FCC Coleman (Florida), and FCI Manchester (Kentucky). Numbers are finally dropping at FCI Seagoville and FCI Beaumont (both Texas).

Marketwatch ran a piece last week on the cost to taxpayers of COVID-19 in prisons, noting that “the public understands the urgent need for action. A national survey found that 66% of likely voters, including 59% of those identifying as ‘very conservative,’ believe elected officials should consider measures to reduce overcrowding in prisons and jails. Survey research over many years has shown that most Americans believe the U.S. locks up too many people.”

poorcorresp200826Meanwhile, U.S. Senator Marco Rubio (R-Florida) is not happy, and last week, he let Attorney General William Barr know it. The Miami Herald reported that “nearly nine months after demanding an investigation of allegations of rampant sexual abuse at Coleman Federal Correctional Complex exposed in a Miami Herald story, Sen. Marco Rubio says he still hasn’t gotten a ‘substantive response’. And he is not happy — especially since there is new cause for concern with COVID-19.”

On Thursday, Rubio wrote to Attorney General William Barr to express his “dissatisfaction that the DOJ has not sufficiently responded to inquiries I have made in regard to FCI Coleman” about the allegations. As well, he complained that “my office continues to receive numerous complaints that FCI Coleman staff are not following the CDC’s Guidance for Correctional and Detention Facilities, which — among other measures — recommends BOP officers and inmates wear masks when in close proximity with others. Most concerning, my office has been made aware that facility management may have ordered staff to return to work despite testing positive for COVID-19. I have already requested the BOP take immediate action to address this allegation, and I look forward to the outcome of its investigation.”

ABC News, ‘Who is going to man the prison if everyone tests positive?’ Corrections officer union warns of dual threat facing federal prisons (August 19, 2020)

CDC, Mass Testing for SARS-CoV-2 in 16 Prisons and Jails — Six Jurisdictions, United States, April–May 2020 (August 21, 2020)

Marketwatch, U.S. taxpayers already pay a high price to support America’s giant prison population. Now COVID-19 is costing them even more (August 20, 2020)

Miami Herald, Rubio demands answers from Barr on sexual abuse, COVID response at Florida prison (August 20, 2020)

– Thomas L. Root

Representatives Want BOP Reform – Update for August 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.

CONGRESSMAN FORMS BOP REFORM CAUCUS IN CONGRESS

Representative Fred Keller (R-Pennsylvania) has created a bipartisan Bureau of Prisons (BOP) Reform Caucus in Congress.

Reform200819Keller said during news conference in Lewisburg, Pennsylvania, last Friday that  the aim of the caucus is to improve BOP accountability and transparency, address systemic issues within the system and ensure the health and safety of corrections officers, staff, inmates and the communities surrounding the prisons.

“With a $7 billion budget, more than 36,000 employees and 172,000 inmates, the BOP is a massive government agency, yet its leadership in Washington lacks adequate congressional oversight,” he said. “”This will bring transparency to the Bureau of Prisons as a whole. Our goal is once we start shining a light on this, we’ll be able to affect change in the leadership of the Bureau of Prisons and the way they conduct business.”

The recent COVID-19 outbreak at the Lewisburg Federal Penitentiary and several cases at the three-prison Allenwood complex “are proof that the policies BOP set in place to mitigate the spread of the disease have failed,” Keller complained.

andykim200820Other members of the caucus are Republican Reps. Glen Thompson of Pennsylvania, Elise Stefanik of New York and Rodney Davis of Illinois and Democrat Reps. Matt Cartwright of Pennsylvania and Andy Kim of New Jersey.

Don’t kid yourself that this caucus has anything to do with the welfare of inmates. Rather, it’s aimed at how the BOP treats its employees and the communities surrounding its facilities, a “straw-that-broke-the-camel’s-back moment resulting from USP Lewisburg’s COVID-19 outbreak and its effect on the surrounding county’s coronavirus case numbers. Nevertheless, any Congressional focus on the highhandedness of BOP management – whether it’s the dismissive treatment of its staff or the cavalier approach to the communities in which the agency facilities are located – can only help.

Pennlive.com, Congressman creates bipartisan Bureau of Prisons Reform Caucus (August 14, 2020)

WNEP-TV, Lawmakers form prison reform caucus (August 14, 2020)

– Thomas L. Root

You’re Not Sick If We Say You’re Not Sick – Update for August 17, 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.

MIRACLE RECOVERIES SEEM TO FLATTEN OUT AS CRITICS TAKE AIM AT BOP AND MARSHALS

The Federal Bureau of Prisons COVID-19 numbers fell 9% last week, but that statistic is only part of the story.

After bottoming out at 1,272 on Tuesday, the number of active inmate coronavirus cases climbed back into the 1,300s, where they stayed all week. Last night, the number was 1,356. What’s more, BOP staffers with COVID-19 stands at 570, virtually the same as the 571 sick staffers a week ago. The number of BOP facilities with active cases fell slightly from 114 to 111. Deaths, unsurprisingly, rose from 116 to 118 (this number, like the number of inmate cases, includes federal prisoners in private prisons as well).

InmateCOVID200817

Since March, the BOP has administered 45,702 tests. If this were one test per inmate, the agency would have completed tests on 29% of its population (but there’s no assurance some people have not been tested multiple times). The BOP is still finding an infection rate among inmates to be 26%.

What the stats show is that the BOP has exhausted its supply of infected inmates it can now miraculously declared to be cured because of a lapse of 10 days from the date the positive test came back. Once again, it appears that the Bureau is finding new cases as fast as it can write off old one.

At the same time, the number of sick staffers is stubbornly refused to fall, and remains nearly double a month ago and three times the level in mid-June. Likewise, the number of institutions where the virus is present is not budging.

transfer200817These Transfers Are Killing Me: Nevertheless, Phase Nine is now in place, and the BOP is seeing inmate transfers and admissions once again. Meanwhile, VICE News published a lengthy article last week alleging that continued US Marshal Service transfer of prisoners during the pandemic was responsible for much of the spread of COVID-19 throughout the BOP. According to VICE News, whistleblower complaints it had obtained alleged “federal prisoners infected with the coronavirus have been shipped as far as Puerto Rico in recent weeks, and to federal lock-ups in Alabama and Florida. BOP employees say prisoners have also tested positive after being shuffled around to facilities in Colorado, Illinois, Texas, Oklahoma, Pennsylvania, and Louisiana.”

VICE News quoted Anthony Koeppel, a BOP union local official at FCI Pollock, as saying, “It’s putting staff at risk, it’s putting inmates at risk, and it’s putting the community at risk. We’re talking about lives here. This is an extremely dangerous situation.”

The Marshals say they aren’t required to do any testing because “an agreement was made” that the BOP would handle tests and quarantines once prisoners are transferred into its lock-ups.

VICE News said BOP staff and prisoners have blamed transfers for helping the COVID-19 “wreak havoc across the BOP, killing 111 prisoners and at least one staff member, and infecting over 10,000 prisoners and 1,200 workers… The agency officially halted most movement of prisoners in March in an effort to limit the spread of the virus; when it does transfer prisoners itself, it requires them to undergo coronavirus testing and a 14-day quarantine before and after being moved. But the Marshals don’t abide by those rules — and they keep moving people. While transfers have slowed — down 76% from April to July compared to the same period last year, according to the Marshals — they never truly stopped.”

herd200817Prisons and Herd Immunity:  The Los Angeles Times noted last week that the prison experience with COVID-19 at San Quentin State Prison north of San Francisco suggests that herd immunity would come with substantial cost. “Herd immunity” is the idea is that eventually, a sufficient percentage of the population will have survived COVID-19 and become immune, which in turn protects the rest of the uninfected population by interrupting the spread of the virus.

“COVID-19 spread unchecked across California’s oldest prison,” the Times reported, “in ways that stunned public health experts, despite efforts to control the disease. As of Monday, there had been more than 2,200 cases and 25 deaths, among a population of more than 3,260 people.”

Expert Questions BOP “Recovered” Declarations: The BOP has experienced its own “San Quentins,” the latest arguably being FCI Seagoville, Texas, where 77% of the 1,746 inmates had COVID-19. As of Sunday night, only 35 inmates reportedly had active cases.

But Dr. Homer Venters – an epidemiologist investigating COVID-19 in the BOP – is skeptical. “People that tested positive, let’s say three, four weeks ago, may be considered recovered or not part of active cases,” Venters told KXAS-TV. “When you kind of wave a wand over people and say they’re recovered, my experience going into jails and prisons is many of them are not actually recovered. Many of them have new shortness of breath, chest pain, ringing in the ears, headaches. Other very serious symptoms.”

Serious Long-Term Effects: Another recent concern has arisen over long-term heart damage among younger people who contract COVID-19. Experts have linked coronavirus to development of a condition called viral myocarditis, which is a weakening of the general heart muscle.

COVIDheart200720“That is happening upwards of 50% of the people who are hospitalized with COVID will end up with some kind of cardiac damage. Some more severe than others,” Dr. Scott Miscovich, a Honolulu COVID specialist, said. “When you have that much damage to your heart muscles, not only are you going to be short of breath walking to a chair to the bathroom, you’re probably only going to survive five years.”

VICE News, ‘Con Air’ Is Spreading COVID-19 All Over the U.S. Prison System (August 13)

Los Angeles Times, San Quentin’s coronavirus outbreak shows why ‘herd immunity’ could mean disaster (August 11)

KXAS-TV, Seagoville Federal Prison COVID-Cases Fall Drastically, Expert Warns Against New Data as Family Mourns Loss (August 14)

KHON-TV, Hawaii COVID-19 expert concerned about heart damage for young people (August 10)

– Thomas L. Root

Chance and Death at the BOP – Update for August 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.

COMPASSIONATE CRAPSHOOT

dice161221A BuzzFeed News review of more than 50 cases seeking an 18 USC § 3582(c)(1)(A) “compassionate release” sentence reduction by federal inmates shows that with little legal precedent to guide courts in deciding the flood of release motions during a pandemic, decisions about who gets out of prison and who does not can appear arbitrary. That’s probably because they are.

Prisoner advocates and defense lawyers say these cases can come down to the luck of the draw, with some judges proving to be more sympathetic than others. Judges are making medical assessments about how much of a threat COVID-19 poses to an individual inmate and then deciding how to balance that against the public safety risk of sending that person back into the community. And judges are reaching different conclusions about how to measure an inmate’s risk of exposure in state and federal prisons, which have seen some of the worst clusters of COVID-19 cases nationwide.

In some denials, judges relied on the fact that there weren’t any COVID-19 cases at a particular prison, but sometimes that wasn’t a barrier. Some judges insisted inmates have served at least half of their sentence. Nearly all judges required proof of a specific medical condition.

compassion160208

Not only are the standards being applied by district courts grossly inconsistent across the 673 active federal district judges. The BOP has added to the chaos as well. Twenty-five inmates have died in its custody this year while their requests for sentence reduction were under consideration, including 18 since March 1, around the time the coronavirus began spreading in U.S. communities. In the 50 July cases examined by Buzzfeed, the BOP opposed or failed to respond to 38 compassionate release requests that the courts denied. The Bureau also opposed 10 releases that courts eventually granted. Only in two cases did the agency agree to a release before a court intervened.

More than one inmate has died of COVID-19 after being denied compassionate release by the BOP. Perhaps the latest was Saferia Johnson, coldly described as “inmate” – along with her crime of conviction – by the BOP media machine (more interested in making the agency look good in a bad situation than in compassionately reporting the death of a mother of two young boys). Saferia died of the virus after the BOP denied her compassionate release (not that the BOP press release would note that). She was serving 46 months for a fairly plain-vanilla white-collar embezzlement offense at Coleman.

“Now I have to bury my daughter and figure out how to raise these kids,” Ms. Johnson’s mother, Tressa Clements, told the Miami Herald. Clements said she and other family members told Johnson’s boys — Kyrei, 7, and Josiah, 4 — Monday that their mother isn’t coming home.

“We told them that God wanted her as an angel with him,” she said. “But she will always be in their lives and be their guardian angel.”

fault200814Incidentally, the BOP death count inched up to 117 yesterday (112 in BOP custody, five federal inmates in private prisons) with virtually all of the deceased “memorialized” by BOP press releases.

Forget that de mortuis nil nisi bonum nonsense. The BOP is much more into speaking ill of the deceased, who after all was an inmate more than a person, and interring any good with his or her bones. The BOP press release obituary (written formulaically by some BOP press office minion), is intended to let the world know that (1) it really wasn’t the BOP’s fault, because the agency did everything it could to save the victim, (2) it really wasn’t the BOP’s fault, because the victim had all of these unidentified “long-term, pre-existing medical conditions,” and, of course, (3) the dead inmate was a scumbag who was serving a sentence for doing truly horrible things, so – in the scheme of things – the death is not that lamentable, except for the fact it may make the BOP look bad unfairly.

compassionaterelease190517It’s worthwhile that we are reminded, once in awhile, that the “inmate” described as “a 36-year-old female who was sentenced in the Middle District of Georgia to a 46-month sentence for Conspiracy to Steal and Embezzle Public Money and Aggravated Identity Theft” was a mom leaving behind a second-grader and a preschooler.

The None of us is as good as our finest moment, nor as bad as our worst. And few of us have a heart as cold as a BOP obituary.

Buzzfeed News, “I Had Hit The Lottery”: Inmates Desperate To Get Out Of Prisons Hit Hard By The Coronavirus Are Racing To Court (August 8, 2020)

Washington Post, Frail inmates could be sent home to prevent the spread of covid-19. Instead, some are dying in federal prisons. (August 3, 2020)

Miami Herald, Woman asked for compassionate release. The prison refused. She just died of COVID-19 (August 6, 2020)

– Thomas L. Root

BOP Whistles a Happy Tune – Update for August 11, 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.

DEATH DOESN’T TAKE A HOLIDAY, BUT BOP SEEKS NORMALCY

Six more inmates died of COVID-19 last week, bringing the BOP’s death total to 116. Twenty-two have died since July 1. Even while the BOP heralded a drop in the number of sick inmates from 2,476 to 1,395, a reduction of 44%, the number of sick staffers hit 580, an increase of 14% from last week (and all-time high). COVID-9 has now reached a record 114 institutions (93% of all BOP facilities).

whistle200811Still, the BOP bravely whistles a happy tune, seeking a return to normalcy as though it has the virus on the run. The agency announced Phase 9 of its rickety COVID-19 “Action Plan.” Phase 9 relaunches a number of EBRR-sanctioned programming (the programs that earn First Step Act credit), some – like the Residential Drug Treatment Program – to 100% and others to half capacity. UNICOR, the federal prison industry, is to spool up to 80% by September 1 and 100% a month later. Recreation time outside will resume, with limitations on group size and length of rec sessions. Inmate transportation begins again.

Meanwhile, fresh breakouts of COVID-19 were reported at USP Lewisburg (51 ill), FCI Loretto (37 ill), the Victorville, California, prison complex (127), USP Marion (70 ill) and FCI Edgefield (60 ill). Those locations join Coleman, Miami, Elkton, Forrest City, Beaumont, Carswell, Oklahoma City, Three Rivers and scores of other BOP institutions with the virus. CNN last week branded FCI Seagoville as “the hardest-hit federal prison in the United States” where “more than 1,300 of the roughly 1,750 prisoners have tested positive for the virus — a stunning three out of every four inmates.”

Since the beginning of May, when there was only a single coronavirus case at Seagoville, the number of inmates testing positive soared to 1,333, according to BOP. Twenty-eight of the roughly 300 prison employees have also tested positive. The outbreak means that the facility has more coronavirus cases than about 85% of the counties in the US.

covidmap200811The virus has reached FCC Florence (Colorado) and FDC Honolulu as well.

At FCI Miami, in Florida, nearly half of the inmates reportedly have tested positive. Kareen Troitino, the FCI Miami corrections officer union president, told ABC News that the virus was spread by one employee to inmates at the facility and, within a day cases at the facility went from one to four. Troitino says the only protective equipment the BOP issued were surgical masks. “One employee walked into work. He did not show a fever. He passed our screening procedures. He was positive. And that one employee spread it to numerous inmates. And then that’s it. Ever since then, it’s been a disaster.”

Troitino’s union local has sued the BOP and several other federal agencies, seeking hazard pay for at-risk essential workers.

In Washington, D.C., Democratic senators and representatives sponsored legislation in both chambers last Thursday to require the array of agencies that administer the nation’s jails and prisons to collect and report publicly detailed information about the spread of COVID-19 in their facilities. Joe Rojas, southeast regional vice president of the federal prison employees, told ABC News, “The Bureau is the largest agency within the DOJ and there’s no oversight. The BOP director doesn’t even get confirmed he just gets appointed.”

Forbes magazine complained last week that the BOP’s “Phase 9 Action Plan… looks a lot like Phase Eight… which looked a lot like Phase Seven. It begs the question as to whether there is a cohesive plan to address the COVID-19 pandemic that has infected over 10,000 federal inmates and over 1,000 correctional staff… killed 110 inmates and one staff member.”

coronadog200323BOP employees at FCI Tallahassee publicly expressed concern over Phase 9’s inmate transportation. “If we’re going to receive inmates that are positive, if we’re going to be assigned to inmates that have already tested positive it’s pretty shaky from day-to-day,” Yalimany Dudley, CO, told WTXL-TV.

Dr. Kristian Morgan, a nurse at the FCI, said inmates are coming in without being tested beforehand, bringing the virus with them. “We received about eight inmates from the Marshal Service last week. Five of those tested positive as soon as they entered inside the institution when we did rapid testing.”

BOP Memorandum, Coronavirus (COVID-19) Phase Nine Action Plan (August 5, 2020)

CNN, Inside the federal prison where three out of every four inmates have tested positive for coronavirus (August 8, 2020)

KTVT, Inside the Federal Prison Where Three Out of Every Four Inmates Have Tested Positive for Coronavirus (August 9, 2020)

Canon City Daily Record, 3 new cases of COVID-19 in Fremont County; Bureau of Prisons reporting 3 cases (August 3, 2020)

Honolulu Civil Beat, First Hawaii Inmate Tests Positive for COVID-19 Along With 4 Corrections Officers (August 7, 2020)

ABC News, As coronavirus spreads through nation’s jails and prisons, lawmakers demand more transparency on toll (August 6, 2020)

WXII-TV News, ‘We’re Risking Our Lives’: Front-Line Federal Workers Sue For Hazard Pay (August 7, 2020)

Forbes, As Bureau of Prisons Enters “Phase 9” Of COVID-19 Plan, BOP Staff Wonder If There Is A Real Plan (August 7, 2020)

WTXL-TV, FCI Tallahassee employees fear the worst as inmate transportation restarts (August 6, 2020)

– Thomas L. Root