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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

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