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BOP Settles Connecticut Inmate COVID Class Action – Update for August 3, 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 MATH AND A CONNECTICUT COVID-19 SETTLEMENT

If you can’t heal’ em with healthcare, then mend ‘em with math.

wonders200803The Bureau of Prisons just completed a week that was nothing short of miraculous. With nearly 4,500 sick inmates only eight days ago, the BOP reported only 2,426 active cases of COVID-19 last night (101 of which are federal prisoners in private joints). To find any comparable medical miracle, you’d have to go back to the Bible.

The numbers have nothing to do with inmates actually beating coronavirus (although some certainly have done so). Instead, it’s purely arithmetic. The CDC COVID-19 guidelines for prisons directs that people with confirmed or suspected COVID-19 infection be put into medical isolation “to prevent their contact with others and to reduce the risk of transmission.” Medical isolation is to end when the inmate meets pre-established testing criteria for release from isolation. The criteria include that “least 10 days have passed since symptom onset” and the inmate has no other symptoms.

The BOP appears to be following the 10-day standard, which is letting it write hundreds of inmates off the “infected” list every day, even in the face of other numbers that should give BOP officials pause. Inmate deaths reached 110 this week (105 in the BOP, five federal inmates in private prisons), with two inmates dying in Texas and three in Florida. (The BOP has added a note on its webpage that four of the deaths occurred while the inmates were on home confinement, which a reasonable person might think was a technique for deflecting blame – you know, the ‘see, we’re not killing them as fast as CARES Act release is’ kind of thing).

COVID-19 numbers200803

In the last month, the number of BOP employees with COVID-19 has quadrupled, with the number last night standing at 503. Given there have been no family visits or inmate transfers for 120 days or better, BOP staff people coming and going are the last vector standing.

The virus is still active in 106 facilities, 86% of all BOP prisons. As FCI Beaumont proved in June, it’s possible to go from eight  COVID-19 cases to 463 in a little more than a month. Now, it seems it may be USP Lewisburg’s turn (see below).  

COVIDfacilities200803

Notably, after the number of BOP inmates with the virus fell for every day in the past week – in the last three days by double digits – the decline stopped, and the numbers inched up by a percentage point, last night.

In COVID-19 legal news, inmates claiming that conditions of confinement at FCI Danbury put them at risk of COVID-19 settled last week after prison officials agreed to an enhanced review process to evaluate prisoners for CARES Act home confinement. The inmates sued in late April when FCI Danbury was among the hardest hit BOP facilities. By early May, about 60 inmates and 50 staff members had contracted the disease and one inmate has died.

The settlement requires the prison to continue with a rigorous process that ranks inmates by their susceptibility to infection and associated health risks and identifies candidates for various forms of early release. Shortly after the case was filed, US District Judge Michael P. Shea accused the prison administration of failing to comply quickly with guidelines issued by the Dept. of Justice and Centers for Disease Control and Prevention for evaluation and possible release of inmates.

release161117Attorney David Golub, whose law firm represented the inmates pro bono, told the Hartford Courant, “What he basically said to them was, ‘You have to identify the people who are medically vulnerable, you have to identify them right way and you have to make reasoned decision about whether to release to home confinement or not.’ And he monitored them,” said .

The parties will file a joint motion to certify the settlement class today.

I reported last week about the DOJ Inspector General’s report on FCC Lompoc, California, which included that the BOP’s use of CARES Act home confinement authority “was extremely limited.” This week, the Lompoc administration responded that “these findings must be placed in context, as these were unique circumstances where the BOP, along with the rest of the country, was learning about how to treat and manage this novel virus. The mitigation of COVID-19 in all of our facilities, including FCC Lompoc, has been and remains our highest priority.”

The IG report found that the BOP had identified 509 Lompoc inmates who qualified for CARES Act release, but had release only eight of them. Since the Report and a July 14 court order in the class-action suit brought by Lompoc inmates against the institution, the BOP has sent 72 CARES Act home confinement recommendations to a review committee, while an additional 655 applications have yet to be looked at.

covidtest200420In Pennsylvania, USP Lewisburg – long COVID-19 free – has begun testing inmates after finding a case of the virus last Thursday. As of last night, 35 inmates have tested positive. All cases are at the institution’s penitentiary, not the camp. A BOP spokesman told local media that testing should increase the number of COVID cases there.

As of last night, the BOP had completed 41,000 tests, which – if every inmate got only one test – would cover 26% of all inmates. A full 28% have tested positive.

CDC, Interim Guidance on Management of Coronavirus Disease 2019 (COVID-19) in Correctional and Detention Facilities (July 22)

CDC, Discontinuation of Isolation for Persons with COVID-19 Not in Healthcare Settings (July 22)

Hartford Courant, Danbury prison inmates settle with Bureau of Prisons in suit over COVID threat (July 27)

Whitted v Easter, Case No. 3:20cv569 (D.Conn.)

Santa Maria, California, Sun, Court order, federal inspection agree with class-action lawsuit’s claims that Lompoc penitentiary could have better stopped the spread of COVID-19 with more home confinement (July 29)

Order, Torres v. Milusnic, Case No. 20cv4550 (CD Cal., July 14, 2020)

Lompoc, California, Record, Officials defend methods used in Lompoc prison’s response to COVID-19 (July 28)

Sunbury, Pennsylvania Daily Item, Federal Bureau of Prisons reports 35 inmates tested positive for virus at USP Lewisburg (Aug. 1)

– Thomas L. Root

It’s Who You Know – And Who Likes You – Update for July 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.

A TALE OF TWO CELEBRITY PRISONERS

I have talked to a number of federal inmates who were approved for home confinement by the Bureau of Prisons, only to be yanked back at the last minute because they had not served quite 50% of their full sentences. At last, there is hope! (Spoiler: I’m just kidding).

ICYMI, in the Coronavirus Aid, Relief, and Economic Security Act – signed into law by President Trump on March 27, 2020 – Congress authorized the BOP to send inmates to home confinement at any time (not just in the last 10%/6 months of their sentences under 18 USC § 3624(c)) during a declared national emergency. That would include the current pandemic.

unabomber200730Congress specified no standards for selecting who should be sent to home confinement. Hypothetically, Ted Kaczynski could be sent home to stay inside for the rest of his natural life. But the Attorney General did establish some standards, such as the inmate has to qualify for low or minimum security (sorry, Ted), have good conduct, be nonviolent, and suffer from one or more CDC-identified risk factors for COVID-19.

Then, unwilling to leave the Attorney General’s standards alone, the BOP decided on its own that if the inmate had not served 50% of his or her total sentence (not just the sentence adjusted for good conduct, but the whole thing), he or she would not qualify to be sent home. One exception was if the inmate served 25% and had fewer than 18 months to go. Another exception was… well, let’s get to that.

Last week we saw another example of the BOP’s practice of treating high-profile prisoners different from everyone else.

In May, Paul Manafort was sent to home confinement after serving 27% of his sentence, with 53 months left to go. The BOP explained that while its standards required that inmates serve 50% of their total sentences, it had the “discretion” to make exceptions, which it did in Paul Manafort’s case (even though there was no COVID-19 at Manafort’s prison).

Put another notch in the BOP’s “discretion” belt. Last week, former Philadelphia-area U.S. Representative Shaka Fattah, sentenced to 10 years starting Jan 25, 2017, was released to home confinement from USP Canaan camp. As of last night, USP Canaan reported a single COVID-19 case, and has had only four others since March. The ex-Congressman has served 42 months, and has 60 months left until his good-time release.

cohen200730Compare this treatment to disfavored high-profile prisoners. Back in New York City, former Trump attorney Michael Cohen (who will not be furloughed to have Thanksgiving Dinner with the President) was yanked out of home confinement and sent back to FCI Otisville on July 9. The BOP said it was because he was trying to negotiate all of his home confinement conditions and was being difficult. Cohen and his lawyer said it was because the BOP was trying to make him agree to not talk to the media or write his tell-all book about President Trump, due out just before the election.

Last week, the ACLU filed a habeas corpus on behalf of Cohen, arguing he should be returned to home confinement because the BOP was violating his 1st Amendment rights. The government filed a detailed opposition that explained no one even knew Cohen was writing a book, and he was asked to sign a list of home confinement conditions that the probation officer, a newbie on the job, had gotten from a friend who had used it for other high-profile inmates sent to home confinement.

Last Thursday, a judge granted habeas corpus, and ordered Cohen returned to home confinement. “In 21 years of being a judge and sentencing people and looking at the terms and conditions of supervised release,” he said, “I have never seen such a clause… Why would the Probation Officer ask for something like this unless there was a purpose to it, unless there was a retaliatory purpose saying, ‘You toe the line about giving up your First Amendment rights or we will send you to jail,’” the judge asked.

The irony here is that both sides were right. There is no doubt that the 1st Amendment limitations the Probation Office sought to ram down Cohen’s throat were gross constitutional violations. Federal inmates in prison are entitled to write books (and can even sell them). Indeed, I have read a few inmate-written books, most of which were self-published and execrable.

book200730Likewise, I have no doubt that the Probation official who prepared the Cohen manuscript had no idea he was writing a book, nor did he imagine that he was creating a constitutional firestorm. Some of the grossest unconstitutional limitations on freedom I have ever seen appeared in terms of supervised release as interpreted by probation officers. Imagine living your life prohibited from using any Internet-connected device without prior approval of a Probation Officer. Or from having any contact with anyone who had ever been convicted of a crime (yeah, “crimes” including speeding).  Or accepting a job offer, buying a house or going to Paducah, Kentucky, on an overnight business trip.

Philadelphia Inquirer, Former Philly U.S. Rep. Chaka Fattah came home early from prison. Federal officials won’t say why. (July 26)

The New York Times, Judge Orders Cohen Released, Citing ‘Retaliation’ Over Tell-All Book (July 23)

– Thomas L. Root

Has BOP Found ‘Peak COVID’? – Update for July 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.

BOP COVID NUMBERS MAY BE CRESTING AS CRITICISM OF BOP PANDEMIC RESPONSE GROWS

The number of Federal Bureau of Prisons prisoners with COVID-19 increased 14% last week to 4,413 as of Sunday night (an all-time high), after falling slight on Saturday. Yesterday, however, the number of infected inmates took a 7% plunge.

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It appears that all of that decrease was due to FCC Beaumont’s dramatic (some might say ‘miraculous’) decrease in reported cases, from 463 on Sunday night to 135 on Monday night. But for that decrease, BOP systemwide cases increased by 35.

Miracle200513Other numbers were not so encouraging. Infected BOP staff increased 33% to 405, and four more inmates died. Most ominously, 108 facilities have COVID-19, 88.5% of BOP joints, an increase of 9% over last week.

Of the 4,120 active inmate cases, Texas facilities FCI Seagoville has 1,257, the women’s FMC at Carswell has 529 cases, and Beaumont Low has 463. Other significant outbreaks are at FCI Miami and Coleman Low and Medium (Florida), Victorville Medium I (California), Butner Low (North Carolina), Elkton (Ohio) and Jesup (Georgia).

A report from the Dept. of Justice Inspector General released last week criticized BOP mismanagement of the pandemic at Lompoc. The report said two Lompoc BOP staff members came to work in late March despite experiencing coronavirus symptoms, although those symptoms were not detected during screening. Officials then failed to test or isolate an inmate who reported that he had begun having symptoms two days earlier and later tested positive. And thus it started.

Medical staff shortage limited inmate and staff screening for COVID-19 symptoms, and other staff shortages resulted in Lompoc officials delaying for 15 days the full implementation of staff movement restrictions required by BOP for institutions with active COVID-19 cases.

What’s more, the BOP’s use of home confinement authority in April was “extremely limited.” As of May 13, the IG report said, over 900 Lompoc inmates had contracted COVID-19 but only 8 inmates had been transferred to CARES Act home confinement.

Fault200728In a statement following the release of the report, the BOP said it had fixed nearly all of the issues identified by the inspector general. It blamed the Centers for Disease Control and Prevention guidelines for many of the problems cited in the report. “These findings must be placed in context, as these were unique circumstances where the BOP, along with the rest of the country, was learning about how to treat and manage this novel virus,” the agency said.

Meanwhile, in Los Angeles Federal Court, Judge Consuelo Marshall granted a preliminary injunction in a class-action lawsuit brought by the American Civil Liberties Union of Southern California that accuses the BOP Lompoc management of failing to take basic hygiene steps to protect those imprisoned.

The Judge ordered BOP officials to tell the court which inmates are medically eligible under CDC risk guidelines for release as part of a plan to reduce the population.

corona200323The BOP asked the judge to dismiss the lawsuit, noting it had built a field hospital and adopted mass testing in May. But after more than 70% of inmates at Lompoc Low tested positive, the judge found there was a “substantial risk of exposure to COVID-19, which is inconsistent with contemporary standards of human decency” and that the BOP had “likely been deliberately indifferent to the known urgency to consider inmates for home confinement, particularly those most vulnerable to severe illness or death.”

DOJ Inspector General, Pandemic Response Report 20-086, Remote Inspection of Federal Correctional Complex Lompoc (July 23, 2020)

CNN, DOJ watchdog report finds lack of staffing contributed to Covid outbreak in California prison (July 23)

Los Angeles Times, Judge orders release of vulnerable inmates at Lompoc prisons hit by virus (July 22)

Torres v. Milusnic, Case No 2:20cv4450 (C.D.Cal, entered July 14, 2020), 2020 U.S. Dist. LEXIS 131446

– Thomas L. Root

Bivens is Dead, Just Not Declared Dead – Update for July 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.

BIVENS, WE HARDLY KNEW YE


 critic200721Scott Callahan is serving a sentence for child pornography offenses. To pass the time, he took up painting. There is no doubt he built up a lot of self-confidence. Whether he developed skill to match is unclear. But what was clear is that he favored painting females in various states of undress or no dress at all. His work attracted followers, among them BOP officials who seized a number of his paintings, believing them to be more porn than art. Everyone’s a critic.

Scott sued his warden and other officials at his institution for violation of his 1st Amendment rights under Bivens v Six Unknown Federal Narcotics Agents. Bivens and two related cases were decided by the Supreme Court between 1971 and 1980, all of which recognized that people have an implied cause of action to sue federal officers for violations of their constitutional rights. Congress adopted a statute giving people the power to sue state and local officials for violation of constitutional rights, 42 USC § 1983. But Congress has adopted no similar statute giving people the power to sue federal officials for such violations. The Supreme Court reasoned that sometimes individual constitutional rights violations could be redressed only by damages, and the Court concluded in Bivens that it had the power to create such actions.

But that was then, and this is now. Since Bivens and its companion decisions were adopted, the Supreme Court has suffered “buyer’s remorse”, and has nearly gutted Bivens, as the 6th Circuit explained to Scott last week when it threw out his suit. “What started out as a presumption in favor of implied rights of action,” the Circuit explained, “has become a firm presumption against them. The Supreme Court has… repeatedly declined invitations, many just like Callahan’s, to create such actions… When asked’ who should decide’ whether a cause of action exists for violations of the Constitution,” the 6th held, the Supreme Court has repeatedly said “the answer most often will be Congress.”

childart200721The problem for Scott, the Circuit observed, “is not just that there has been a long drought since the Court last recognized a new Bivens action or even that the Court has cut back on the three constitutional claims once covered. What’s harder still is that the Court has never recognized a Bivens action for any First Amendment right, and it rejected a First Amendment retaliation claim decades ago for federal employees. There’s something to be said for leaving it at that and pointing out that the best idea for people in Callahan’s situation is to urge Congress to create a cause of action for constitutional claims against federal officials like the one used against state officials.”

It is fairly safe to say that, except in the narrowest of circumstances – such as when federal agents kick down your door by mistake – Bivens is dead.

Callahan v. BOP, 2020 U.S. App. LEXIS 22115 (6th Cir. July 16, 2020)

– Thomas L. Root

BOP’s Record-Setting COVID-19 Week – LISA Newsletter for July 20, 2020

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We’re back after a week of vacation in the wilderness (away from COVID-19, the Internet and cellphones).

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

TWIN PEAKS

twinpeak200720Last week was a record-setting one for the Bureau of Prisons, and not in a good way. As of last night, 3,861 federal prisoners in BOP and private prisons (and 318 BOP staff) had active coronavirus cases (a record), in 99 BOP facilities and six private prisons, as well as 46 halfway houses (a second record). A total of 101 federal prisoners have died from COVID-19 (a third record), the latest two reported deaths from FMC Carswell and FCI Seagoville, both in the Dallas-Fort Worth, Texas, area.

The number of BOP COVID-19 cases has now blown past the previous record of 3,461 on May 11, 2020. But on that date, COVID-19 was present in only 51 federal prisons, about half of yesterday’s total. The BOP’s history with COVID-19 is one of twin peaks, a spike in May 11 (due largely to the rampant pandemic at FCI Terminal Island) and the current spike, due in large part to Seagoville.

BOPCOVOD200720

The Dallas Morning News reported last Monday that FCI Seagoville announced an effort about two weeks ago to mass test inmates to identify asymptomatic prisoners. There were 61 active cases among inmates and three among employees that day. There were 882 cases as of last Tuesday. Last night, the number hit 1,122. That’s 62% of the inmate population.

One inmate quoted by the newspaper said many inmates feel certain they’ll catch it. He said the prison wasn’t prepared for the outbreak. Some inmates and their families think the virus spread in the facility through the prison staff, according to the paper. Another inmate, who spoke on the condition of anonymity because of his fear of reprisals, described health care in the facility as “spotty and inadequate,” especially at night and on weekends.

Things are not much better at FMC Carswell, the BOP’s medical facility for women. After recording two cases of COVID-19 in April, Carswell saw its third on June 29.

“After that, they started dropping everywhere,” one inmate told the Fort Worth Star-Telegram. “It’s like a scary movie.” As of last night, Carswell had 200 reported inmate cases.

coronadog200323The paper reported that multiple inmates “who did not want to be named out of fear of retaliation reported… that when an inmate tests positive, her belongings are not removed from the shared living space for hours. Inmates are responsible for cleaning the infected rooms but often do not have the proper PPE, two inmates wrote. One inmate who tested positive was allowed to use a shared bathroom, which was not cleaned for hours after she used it.”

Spectrum Bay News 9 of Tampa reported last Friday that the Federal Correctional Complex at Coleman, in Sumter County, Florida, correctional officers union officials say that coronavirus cases among both inmates and staff increased at each of the four Coleman facilities last week, and that the reality is “much worse” than what is reported. Union vice president Jose Rojas complained to the news channel that because the BOP does not test everyone, “you’re walking into a mine full of bombs not knowing who is positive and who is not.”

Rojas said that with growing concern over asymptomatic carriers, the union is now considering setting up a testing site for Coleman staff. He told the Miami Herald that “two officers were working while positive for the virus.”

Since March, Spectrum Bay News 9’s sister operation, Spectrum News 13, has requested interviews with Coleman wardens and BOP officials, along with a tour of FCC Coleman. “Our requests have been repeatedly denied,” Bay News 9 reported.

The Miami Herald reported Friday that “roughly a week ago, FCI Miami had a handful of confirmed infections – not good but better than many prison compounds. Thursday, according to the Bureau of Prisons website, the number had leaped to 93, a colony of vomiting, headachy coughing captives.”

plagueB200406The paper said Kareen Troitino, the FCI Miami corrections officer union president, blamed lack of protective equipment, close quarters and people going in and out. “One of the main challenges is that the Bureau of Prisons defines PPE as surgical masks and nothing more,” the Herald quoted Troitino as saying. “I get a lot of complaints from a lot of employees that they ran out of gloves and N95 masks.” he said.

“We are the new Wuhan, especially in Miami. It’s bad,” Rojas told the Herald. “I’m afraid for our staff.”

The more researchers learn about COVID-19, the uglier it gets. A team of British doctors warned a week ago that potentially fatal COVID-19 complications in the brain – including delirium, nerve damage and stroke – may be more common than initially thought. University College London research suggests serious problems can occur even in individuals with mild cases of the virus.

“We identified a higher than expected number of people with neurological conditions such as brain inflammation, which did not always correlate with the severity of respiratory symptoms,” Michael Zandi, of UCL’s Queen Square Institute of Neurology and University College London Hospitals NHS Foundation Trust, told Agence France-Presse.

Newsweek reported that a European Heart Journal – Cardiovascular Imaging study of 1,216 patients found that 55% of them showed heart damage resulting from COVID-19. of whom 813 had been diagnosed with COVID-19, and 298 were deemed probable cases.

COVIDheart200720

The participants were from 69 countries across six continents. They each had an echocardiogram done between April 3 and 20.

Co-author Professor Marc Dweck, consultant cardiologist at the University of Edinburgh, U.K., said, “Damage to the heart is known to occur in severe flu, but we were surprised to see so many patients with damage to their heart with COVID-19 and so many patients with severe dysfunction. We now need to understand the exact mechanism of this damage, whether it is reversible and what the long-term consequences of COVID-19 infection are on the heart.”

Dallas Morning News, As coronavirus spreads through Seagoville prison, inmates and family fear ‘a waiting game’ to get sick (July 14)

Fort Worth Star-Telegram, Women say life is ‘like a scary movie’ as coronavirus spreads in Fort Worth prison (July 13)

Tampa, Florida, Spectrum Bay News 9, Prison Union Leader Says COVID-19 Outbreak at Coleman Worse Than You Think (July 17)

Miami, Florida, Herald, COVID-19 races through Miami’s federal prison (July 17)

Agence France-Presse, Brain problems linked to even mild virus infections: study (July 8)

Newsweek, Scans Reveal Heart Damage in Over Half of COVID-19 Patients in Study (July 13)

– Thomas L. Root

The Virus is Still With Us, But the Lawsuits Are Not – Update for July 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.

COVID-19 REALITY KICKS BOP, INMATES HARD

Two weeks ago, the Federal Bureau of Prisons had COVID-19 on the run. The number of infected inmates had been falling, falling, falling, throughout June, a real bear market for the virus. The number of sick inmates fell to 1,256 by June 25 from a high of 2,109 only 17 days before, staff infections had slipped to 133 from an early June high of 190, and the number of BOP facilities experiencing infections was holding steady at 70. Inmate deaths seemed to have peaked at 92.

kick-em-outTwo weeks later, that real-world pandemic you’ve been hearing about has kicked the BOP in the ass. As of late today, inmate infections are up 81% to 2,109, staff infections have increased by 59%, and the number of BOP facilities with the virus on premises hit 93 (that is, a whopping 76% of all BOP facilities). Six more inmates have died, bringing the total to 98.

The BOP has been looking to tamp coronavirus outbreaks with testing, but testing is spotty. Overall, the BOP says it has tested 30,425 inmates, only about 23% of the BOP population. About 29% of the tests are coming back positive.

JAMAGraph200708

Meanwhile, an alarming report in the Journal of the American Medical Association today found that if coronavirus trotted through American society, it galloped through the prisons (see graph from the article, above). What’s more, the effects in prison were demonstrably worse. “The COVID-19 case rate for prisoners was 5.5 times higher than the U.S. population case rate of 587 per 100, 00” JAMA reported. “The crude COVID-19 death rate in prisons was 39 deaths per 100, 000 prisoners, which was higher than the U.S. population rate of 29 deaths per 100, 000 (Table).” And in a case of doing more with less, U.S. prisons managed to post this sadly impressive statistic despite the fact that in the general population, most of the deaths (81%) came from the cohort of people age 65 or older. But that group comprises 16% of the general population, but only 3% of prisoners. Even with all those extra old people in the general population, prisons managed to bury more COVID-19 victims per 100,000 than did society in general.

control200511The virus hasn’t peaked, but it is nevertheless safe to say that inmate class action suits against the BOP over the agency’s mismanaging of the COVID-19 pandemic has. Last week, the Massachusetts federal district court dismissed an inmate class action against FMC Devens after ruling that it could not proceed as a 28 USC § 2241 habeas corpus action. The inmate plaintiffs refused to proceed under the Prison Litigation Reform Act (which would have required each plaintiff to endure a six month-long administrative remedy process within the BOP before filing suit, thus dooming any hope for judicial relief while it could still do any good).

In a Southern District of New York class action against MCC New York, the court denied the inmate plaintiffs a preliminary injunction based on 8th Amendment violations. The court agreed that “the inmates are likely to show that the MCC’s response to the pandemic was ad-hoc and overlooked many gaps in its scheme to identify and isolate infected inmates — creating conditions that posed a substantial risk to the health of all inmates,” but that they probably could not show that the MCC’s failures were a result of “deliberate indifference to their plight” as opposed to bumbling negligence.

In North Carolina, FCC Butner inmates voluntarily dismissed their lawsuit that aimed their 8th Amendment rights were being violated by the prison’s handling of the COVID-19 pandemic. U.S. District Court Judge Louise W. Flanagan denied the inmates’ motion for a temporary restraining order and preliminary injunction June 11.

corona200313Nevertheless, an Oregon public defender filed suit last Tuesday alleging that “whether through indifference or incompetence, the Federal Bureau of Prisons is endangering the lives of individuals entrusted to its care by failing to establish consistent and effective safeguards to protect them from the coronavirus.” The suit targets FCI Sheridan, and was brought on behalf of a single inmate. Just in the past week, Sheridan reported its first COVID-19 case.

Journal of the American Medical Association, COVID-19 Cases and Deaths in Federal and State Prisons (July 8, 2020)

Fernandez-Rodriguez v. Licon-Vitale, 2020 U.S. Dist. LEXIS 116749 (S.D.N.Y. July 2, 2020)

Grinis v. Spaulding, Case No. 1:20cv10738 (D.Mass)

Wake Weekly, Butner Inmates Withdraw Lawsuit Over COVID-19 Response (July 2)

Oregon Public Broadcasting, Federal Lawsuit Calls Out COVID-19 Conditions at Sheridan Prison (June 30)

– Thomas L. Root

Death, SWAT and Smokes: A Quick Trip Around the BOP – Update for June 23, 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.

NEWS FROM AROUND THE BOP

Deadly Business: The Dept. of Justice last week set new dates to begin executing federal death-row inmates following a months-long legal battle over the plan to resume executions, which have been on hold since 2003 .

death200623Attorney General William Barr directed the BOP to schedule the executions, beginning in mid-July at USP Terre Haute, of four inmates convicted of killing children. Three of the men had been scheduled to die last year, when Barr ended an informal moratorium on capital punishment.

Congress Queries BOP: House of Representatives Homeland Security Chairman Bennie Thompson (D-Mississippi) last week asked the BOP for details about whether agency officers who helped police the Washington, DC, protest have been quarantined or tested for COVID-19 before returning to work.

Thompson, who joined with Rep. Raja Krishnamoorthi (D-Illinois), Rep. Jamie Raskin (D-Maryland) and Sen. Cory Booker (D-New Jersey), noted that some BOP officials deployed to the protest — part of a display of force demanded by President Trump — came from FCI Petersburg, in Hopewell, Virginia (site of a significant coronavirus outbreak), yet were seen without wearing masks.

IG Out of SORTS with BOP: The DOJ Inspector General last week issued a report last week recommending that BOP Special Operations Response Teams (SORT) be suspended until comprehensive guidelines are developed.

cops200623BOP institutions maintain their own SORTs. A typical Special Operations and Response Teams has 15 members, including an emergency medical treatment specialist, a firearms instructor, a rappel master, a security/locking systems expert, a blueprint expert, and several firearms and tactical planning/procedures experts. As of 2013, the Bureau maintained 44 SORTs involving more than 700 BOP staff. 

The DOJ Inspector General wrote, “SORT members deployed a distraction device munition in a confined space, which was not authorized for use under BOP policy; SORT members deployed real OC spray rather than inert OC spray during a training exercise, allegedly without proper authorization; and SORT members used force, including firing a simunition round, against staff members who were allegedly yelling to the SORT that they were ‘out of role’ and physically vulnerable… BOP policies we reviewed did not clearly specify the types of weapons, less than lethal weapons, and munitions, if any, that are authorized for use during BOP training exercises; and did not provide safeguards to ensure that exercises are conducted safely.”

cigarette200623BOP CO Gets Charged: The US Attorney’s Office for the Middle District of Pennsylvania announced on June 10 that a former correctional officer at FCI Schuylkill was charged on June 9 with bribery and corruption. The criminal information filed by the USAO alleged that between 2011 and 2016, the CO had smuggled tobacco into FCI Schuylkill in exchange for payments by prisoners.

AP, New dates set to begin federal executions (June 15, 2020)

Politico, Dems ask Bureau of Prisons for coronavirus update on staffers who manned protests (June 15, 2020)

DOJ Inspector General, Management Advisory Memorandum of Concerns Identified During Mock Exercises by Federal Bureau of Prisons Special Operation Response Teams (June 18, 2020)

Special Ops Magazine, Special Operations and Response Teams (SORT) (Jan. 2013)

DOJ, Former FCI Schuylkill Correctional Officer Charged In Bribe Scheme to Provide Tobacco to Inmates (June 10, 2020)

– Thomas L. Root

Coronavirus Simmers While BOP Gets Fried – Update for June 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 AIN’T GOIN’ AWAY

corona200313The New York Times reported last week that “cases of the coronavirus in prisons and jails across the United States have soared in recent weeks, even as the overall daily infection rate in the nation has remained relatively flat.” Certainly, the BOP’s own numbers suggest that little progress has been made in combatting COVID-19 in the BOP, and the stats contain an ominous sign.

Active inmate COVID-19 cases increased 9% to 1,351, but only one additional inmate death was recorded. What should worry the BOP, however, is a 9% increase in facilities reporting active coronavirus cases, from 64 to 70 prisons (well more than half of all BOP facilities). A month ago, the facilities count was 52. Two months ago, it was at 46.

The BOP reports that it has completed nearly 19,000 inmate COVID-19 tests, and one out of three inmates has tested positive. Yet the testing is a mere drop in the bucket: 86% of all federal inmates have yet to be tested.

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A June 18 Marshall Project/VICE News collaboration blasted the BOP’s management of the pandemic. Based on over 100 interviews and reviews of dozens of internal BOP memos, emails, and other documents, the story reported that

•   “staff ignored or minimized prisoners’ COVID-19 symptoms, and mixed the sick and healthy together in haphazard quarantines”;

•   thousands of prisoners being transferred around country in February and early March transmitted the pandemic from prison to prison, according to BOP records;

•   BOP staff felt pressured to report to work after being exposed to sick prisoners;

•  the BOP failed to follow its own pandemic response plan by spacing out prisoners;

•   the agency deliberately limited testing so that it would not have to report positive cases; and

•  prisoner quarantines were set up in “filthy buildings that had been vacant for years or in tents that flooded during rainstorms.”

BOPCOVID-19-200622The report said BOP Director Michael Carvajal refused an interview request, but a BOP spokesperson – while declining to comment on some of the allegations – maintained the agency’s response to the pandemic “was carefully planned and coordinated, and that it took an array of precautions to contain the outbreak.”

New York Times, Coronavirus Cases Rise Sharply in Prisons Even as They Plateau Nationwide (June 16, 2020)

ABC, More than 1 out of 3 tested federal inmates were positive for coronavirus (June 16)

The Marshall Project, “I Begged Them To Let Me Die”: How Federal Prisons Became Coronavirus Death Traps. (June 18)

– Thomas L. Root

No COVID-19 Curve Flattening in the BOP – Update for June 9, 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 ROUNDUP

Talk about illness… Everyone’s sick to death about COVID-19 talk. But wishing it gone is a little bit different than having it gone. That’s somewhat the problem that the Federal Bureau of Prisons has with the coronavirus in general, and that BOP Director Michael Carvajal has with it in particular.

The BOP’s active coronavirus count jumped 23% this past week, from 1,710 sick inmates on June 1 to 2,109 yesterday. Staff infection ticked up from 171 to 185, and the number of BOP facilities reporting the virus jumped 7%, from 57 to 62. Cumulative inmate COVID-19 deaths increased last week from 70 to 81.

flatten200609The numbers keep ticking up, and – what’s worse – at the same pace. Nevertheless, when the Senate Judiciary Committee held a hearing a week ago today, Director Carvajal told the senators that “at this point, we have more recoveries than new infections. I believe that this shows that we are now flattening the curve.”

That’s not what flattening the curve means. “Flattening the curve” means to stagger the number of new infections over a longer period of time, although I suppose that eventually – when the BOP runs out of inmates yet to be infected – the curve will necessarily flatten when there’s no one left to get sick. But whatever else is happening, the BOP’s curve is not flattening.

Something else that’s not happening is a decrease in inmate class actions against the BOP. Those are proceeding apace around the country:

Massachusetts: A class of inmate plaintiffs who had conditions identified by the Centers for Disease Control and Prevention that heightened their risk for contracting COVID-19 or having a worse outcome from it (the “medically vulnerable”) sued the Federal Medical Center at Devens, Massachusetts, seeking proper and complete home confinement relief from the administration there. The Massachusetts federal district court denied the inmates an emergency injunction in May, but they asked for reconsideration last week. The court had denied the injunction in part because there had only been a single COVID-19 case at Devens when the injunction was denied. But since then, 24 inmates have been diagnosed as having the virus.

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The injunction was also denied because the BOP had convinced the judge that it was “immediately reviewing all inmates who have COVID-19 risk factors… to determine which inmates are suitable for home confinement.” But then Devens’ warden, testifying in a different proceeding last month (one seeking compassionate release for an inmate), admitted that medical vulnerability to COVID-19 has not been considered a factor by the Devens front office in its compassionate release decisions, and that Devens refuses to transfer any prisoner to home confinement due to COVID-19, regardless of age or medical vulnerability, until the prisoner has served at least 50% of his sentence or at least 25% of his sentence with under 18 months left to serve.

The judge who originally heard the warden’s testimony in the compassionate release action found the policy to be “utterly inconsistent” with the Attorney General’s direction to maximize the use of home confinement as a tool to combat COVID-19, leaving “at-risk inmates who are not being individually assessed for release. And some of them may get very sick. Some of them may die.”

That reconsideration motion is pending.

Connecticut: In litigation over FCI Danbury, the judge has ordered the parties to give inmates a release form that would let the court release their presentence reports to the plaintiffs’ lawyers. The plaintiffs say access to the PSRs – which include a section on the defendants’ medical conditions – would help inmates vulnerable to the virus.

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New York: U.S. District Judge Edgardo Ramos was preparing to rule on an inmate motion for injunction after a doctor tasked with inspecting MCC New York issued a scathing report proclaiming basic sanitation and virus screening failures. In a May 26 filing, Dr. Homer S. Venters criticized poor inmate screening and concluded that the prison has “ignored” signs that the virus may be widespread. Dr. Venters also reported a lack of access to basic sanitation, including soap. and he saw evidence that the facility is “widely infested with mice and roaches.”

Ohio: The FCI Elkton injunction came to a screeching halt after the BOP went back to the Supreme Court last week and this time convinced Associate Justice Sonia Sotomayor to grant its stay request. The Northern District of Ohio injunction issued by Judge James Gwin is now on hold, pending an appeal to the 6th Circuit Court.

North Carolina: An inmate suit over conditions at the several prisons making up the Butner Federal Correctional Complex, like the ones in Massachusetts, Ohio and Connecticut, seeks a court order that the Butner administration accelerate home confinement and compassionate release due to the rampant coronavirus at Butner (which has 571 active inmate cases and 18 deaths).

The BOP has moved to dismiss the suit, arguing that things are not as bad as the plaintiffs say they are because a lower percentage of infected inmates are dying than victims in the general public. Yesterday, the inmates replied,

More than 900 men incarcerated at Butner—almost 21 percent of Butner’s population—have tested positive for the virus that causes COVID-19. Nineteen people (including a BOP staff member) have died1—far more than at any other BOP facility. Half of those deaths happened in the 13 days since Petitioners filed this lawsuit. Infections and deaths are rapidly rising. The situation gets worse by the day.

Despite these harrowing and undisputed facts, Respondents contend that “FCC Butner’s efforts have been effective in managing infections and treating inmates.” Because they have purportedly taken some steps to mitigate the spread (however ineffective and late), Respondents argue their response to this deadly outbreak cannot possibly be deemed constitutionally defective. But that is not the law.

California: The inmates in a habeas corpus action against FCI Terminal Island and FCC Lompoc have asked the Central District of California federal court to order “a highly expedited process — for completion within no more than 48 hours — for BOP to use procedures available under the law to review members of the Class for enlargement of custody… in order to reduce the density of the prison population… and subsequently ordering the release of those granted temporary enlargement.” Separately, the complaint requests injunctive relief under the 8th Amendment to order improved conditions for all prisoners remaining at the institutions in the form of social distancing and provision of hygiene products.

(The May 10 spike represented the explosion of cases at FCI Terminal Island)
                         (The May 10 spike represented the explosion of cases at FCI Terminal Island)

The BOP has moved to dismiss the California suit for the same reasons it has raised elsewhere, that the court lacks the power to grant the asked-for relief and that the plaintiffs have not exhausted remedies. The court should decide the issue this week.

Grinis v. Spaulding, Case No 1:20cv10738 (D. Massachusetts)

Martinez-Brooks v. Easter, Case No 3:20cv569 (D Connecticut)

Hallinan v. Scarantino, Case No 5:20hc2088 (Eastern District of North Carolina)

Wilson v. Williams, Case No 4:20cv794 (Northern District of Ohio)

Fernandez-Rodriguez v. Licon-Vitale, Case No 1:20-cv-03315 (Southern District of New York)

Wilson v. Ponce, Case No 2:20cv4451 (Central District of California)

– Thomas L. Root

BOP Gets Grilled On Home Confinement – LISA Newsletter for June 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.

LAWMAKERS’ QUESTIONS ABOUT BOP HOME CONFINEMENT ARE GETTING SHARPER

Congressional lawmakers last week started raising questions about the Federal Bureau of Prisons’ release of high-profile inmates, and began calling for widespread testing of federal inmates as the number of coronavirus cases has exploded in the federal prison system.

hotseat200608Sen. Kamala Harris and Rep. Hakeem Jeffries sent a letter Monday to Attorney General William Barr and BOP Director Michael Carvajal over the Bureau’s use of its CARES Act home confinement authority. The CARES Act permits the BOP essentially to designate an inmate’s home as his or her prison, and to send the inmate home for as much of his or her remaining sentence as the BOP wishes. This authority lasts as long as there is a national emergency declared by the President (read “pandemic”).

Citing the release of former Trump campaign chairman Paul Manafort and former Trump lawyer and fixer Michael Cohen to home confinement, the Harris/Jeffries letter said “these examples make clear that there are two systems of justice in our country – one for President Trump and his associates, and another for everyone else. These examples also heighten our concern about the politicization of the Department of Justice.”

The letter demanded to know whether the White House played any role in the release of Manafort or Cohen, and wanted a list of “each official at DOJ and BOP who considered and/or cleared Paul Manafort’s transfer to home confinement.” The lawmakers wrote, “As President Trump’s associates are cleared for transfer, tens of thousands of low-risk, vulnerable individuals are serving their time in highly infected prisons.”

Regular readers of this blog may be forgiven for thinking that the writer is no fan of the ham-handed management at the BOP, but despite this, the Cohen release has gotten a bad rap. The BOP announced that its standards for release of vulnerable inmates included a requirement that they have completed either 50% of their sentences, or 25% of their sentences and have fewer than 18 months remaining.

You may recall that Cohen (like many inmates) was identified as being a home confinement candidate in April. Then he was taken off the list, only to be relisted in late May. When that happened, I did the math. He had done well less than half his sentence, but he had done more than 25%, and he was within 18 months of release as of May 22, 2021. Type his name into the BOP website, and see whether I am wrong.

lovelost200608Of course, last time I checked, Trump is no Cohen fan. Why Harris and Jeffries would think the White House threw him a life ring on early release boggles the mind.  Manafort – who had years to go on his sentence and was well under 50% done – is another matter.

The BOP has disputed that it is giving any preferential treatment to high-profile inmates and has said it has placed 3,544 inmates on home confinement since Barr first issued a memo ordering an increase in the use of home confinement in late March. However, as AP reported last Monday, “the response from the Bureau of Prisons on the coronavirus has raised alarm among advocates and lawmakers about whether the agency is doing enough to ensure the safety of the about 137,000 inmates serving time in federal facilities.”

At a Senate Judiciary Committee hearing last Tuesday, Carvajal was grilled by senators over whether minority inmates and those with fewer connections were receiving similar treatment to Manafort in being sent home.

Carvajal said the BOP has transferred more than 3,500 inmates to home confinement since the CARES Act passed. In response to questioning, he explained the BOP began by identifying 27,000 inmates with at least one COVID-19 risk factor. Only about 4,000 of those qualified for home confinement under Attorney General William Barr’s March and April memos. When the BOP decided to include those with only minor disciplinary problems in the last year, the number rose to 5,300.

allen200608Sen. Cory Booker (D-New Jersey) demanded a breakdown of the demographics of people BOP has approved for transfer to home confinement, saying he is concerned racial bias might be impacting the decisions, including in the application of PATTERN. Carvajal did not provide the demographic data at the hearing, but he assured Booker with the sincerity of a bureaucrat that the BOP administration is taking that concern seriously, and that home confinement approval data tracks with the demographics of the federal prison population.

We’ll see if any data are released to support that platitude.

Letter to William Barr from Kamala Harris and Hakeem Jeffries, June 1, 2020

AP, Lawmakers question federal prisons’ home confinement rules (June 1)

Courthouse News, Senators Grill Feds on Inmate Protections During Pandemic (June 2)

– Thomas L. Root