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‘Everything’s Great, Nothing to See Here, Folks,’ in BOP COVID-19 Response – Update for June 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.

WHACK-A-MOLE

The BOP, in the new “normal” for COVID-19, is playing “whack-a-mole” with fresh coronavirus outbreaks at facilities that had been COVID-19 free a few weeks ago, as well as increasing illness numbers at institutions that had seemed to be on the mend, The number of inmate COVID-19 cases last night (1,954) is up about 8 percent from a week ago (1,813). Inmate deaths increased from 65 a week ago to 73. But ominously, the number of BOP facilities with COVID-19 cases hit 59 yesterday, an all-time high (and up from 53 a week ago).

whack200602

New COVID-19 breakouts were reported for FCI Talladega and FMC Devens, to note two facilities. Both had reported infections a month before but were later cleared.

Perhaps more ominous, an FCI Terminal Island inmate died last week after the BOP had earlier said the man had recovered from the illness. Adrian Solarzano tested positive for the virus on April 16 and was placed in isolation. The Los Angeles Times said the BOP deemed him “recovered” on May 10 after he no longer showed symptoms. But five days later — on May 15 — Solarzano was admitted to a hospital after complaining of chest pain and anxiety. He was tested twice for COVID-19, and authorities said both results were negative. But his condition worsened, and he was pronounced dead by hospital staff Sunday.

Meanwhile, the Anchorage Daily News reported that an Alaska man granted compassionate release from FCI Terminal Island, which still has 32 inmates and four staff ill, tested positive one day before his release. The BOP put him on a commercial flight to Anchorage, without ever telling him he had the virus.

fail200526The inmate’s lawyer says a chain of misfires allowed the BOP to swab the inmate for testing on May 5, get positive-for-the-virus lab results on May 7, and release him to fly home commercially on May 8. “There are so many institutional failures you can identify in this,” said Daniel Poulson, a federal public defender who represented the inmate on his compassionate release motion.

A class action lawsuit – looking a lot like successful suits brought in Connecticut about FCI Danbury and Ohio on FCI Elkton – was filed May 26 on behalf of the inmates at the several prisons that are part of the Butner, North Carolina, complex. The suit, Hallanan v. Scarantino, was brought by prisoners represented by the American Civil Liberties Union, the ACLU of North Carolina, the Washington Lawyers’ Committee for Civil Rights and Urban Affairs, and the law firm of Winston & Strawn.

The action seeks an injunction ordering Butner to release or transfer vulnerable prisoners, and alleges that Butner officials “have not taken the necessary steps to address the risk faced by the people in their custody. They have opposed motions for compassionate release, and they have failed to order furloughs or transfers to home confinement with sufficient speed and in sufficient numbers. They have failed to make other arrangements within the facility to allow for adequate physical distancing. And they have failed to implement effective isolation, quarantine, testing, screening, hygiene, and disinfecting policies or meaningfully modify movement protocols for staff and incarcerated people.”

Meanwhile, the Intercept reported last week that while BOP’s COVID-19 numbers included 230 halfway house residents at 42 RRCs, it “is clear is that the real number of residents with Covid-19 in federal halfway houses is higher than what appears on the BOP website.” The Crime Report reported that because some halfway houses receive a per diem rate based on the daily population at a given facility, the contractors “have an incentive to keep halfway houses as full as possible. Critics blame such financial incentives for a reluctance to send more people home during the pandemic.”

huckster200603But despite all of the foregoing, everything in the BOP is hunky-dory. Just ask BOP Director Michael Carvajal, who yesterday testified before the Senate Judiciary Committee that

In total, from March 1, 2020, the date of the beginning of the national emergency proclaimed by President Trump, until today, 5,323 inmates total have tested positive for COVID- 19 and to-date, 3,784 have recovered. More than 80 percent of infected individuals have not become significantly ill. The number of hospitalized inmates – those who became significantly ill – is currently only 83 in total. And in fact, the number hospitalized is on a significant downward trajectory (see attached), suggesting that our attempts to mitigate the transmission of the virus is effective.

(I added the bold-face for emphasis). The attached graph:

BOPgraph200603

But the fact that 80% of the inmates have not become significantly ill suggests very little (other than good fortune). More telling is that so far, only 10% of the inmate population has been tested for COVID-19.  At the same time, the number of BOP facilities at which the virus is present keeps climbing:BOPJointsCOVID200603

The only certainty is that while the BOP bungles at institutions like Oakdale, Elkton, Danbury, Butner, Fort Worth and Terminal Island go on, the Director and his PR machine will continue to publicly proclaim, “In response to the COVID-19 pandemic, the Bureau has taken, and will continue to take, aggressive steps to protect the safety and security of all staff and inmates, as well as members of the public.”

A parenthetic note: It is doubtful that the BOP’s Medical Director installed much confidence in the members of the Judiciary Committee at yesterday’s hearing. During his testimony, according to Associated Press reporter Mike Balsamo, he wore his face mask incorrectly:

BOPMeddir200603

Oops.

The Intercept, As Coronavirus Spreads in Federal Prisons, Cases in Halfway Houses are Being Undercounted (May 28)

The Crime Report, Halfway Houses Called Another Vector for Coronavirus (May 28)

Anchorage Daily News, He tested positive for the coronavirus. One day later, a federal prison flew him home to Alaska (May 26)

Huff Post, Inside A Federal Prison With A Deadly COVID-19 Outbreak, Compromised Men Beg For Help (May 26)

Hallanan v. Scarantino, Case No. 20-HC-2088 (E.D.N.C., filed May 26, 2020)

– Thomas L. Root

Double Secret PATTERN Scoring – Update for June 1, 2020

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

BAIT AND SWITCH?

bait200601For those of you who just came in, the First Step Act, among many other things, mandated that the Federal Bureau of Prisons would employ a state-of-the-art risk and needs assessment program, intended to determine how likely an inmate was to be a recidivist upon release, and what programs would best address the factors making him or her likely to reoffend.

First Step provided that inmates could then earn credits for successfully completing the programming, credits that would enable them to go home earlier or obtain extra halfway house.

It was intended to be a win all around.

The Dept. of Justice conducted a 10-month long study-and-comment period beginning in April 2019 on how to best develop a risk and need assessment program that met First Step standards. That resulted in adoption of PATTERN (“Prisoner Assessment Tool Targeting Estimated Risk and Needs” for you folks who eschew acronyms). PATTERN employed a series of about a dozen static and dynamic factors to provide an aggregate number placing the inmate being tested in the minimum, low, medium or high category.

The original PATTERN factors were very publicly modified last January to lessen the risk that PATTERN might be unconsciously biased so that it returned higher scores for racial minorities. And with that, PATTERN was ready for use.

The BOP announced that all inmates had been rated by PATTERN, but a number of people from different institutions expressed frustration at getting their PATTERN score from BOP staff. A few swore their BOP case managers had no idea what PATTERN even was. Using the revised PATTERN matrix over the past four months, I have helped several people estimate their PATTERN scores. But in almost every case, when the people I helped received their actual PATTERN scores from the BOP, those scores were higher – sometimes much higher – and the reason for the discrepancy was a mystery.

topsecret200601We may now have an answer to the conundrum, but it is not a pretty one. ProPublica, an independent investigative journalism nonprofit, last week reported that it had obtained a 20-page policy document drafted by the BOP earlier this year that altered the PATTERN standards to make “it harder for an inmate to qualify as minimum risk.” The draft document, which does not appear to have been finalized, dramatically changes the maximum number of points for each risk category, according to ProPublica. “It really tanks the whole enterprise if, once an instrument is selected, it can be strategically altered to make sure low-risk people don’t get released,” Brandon Garrett, a Duke University law professor who studies risk assessment, was quoted as saying. “If you change the cut points, you’ve effectively changed the instrument.”

ProPublica said a BOP spokesman had confirmed that the Bureau had revised the risk categories without informing the public. The 2019 report was an “interim report,” ProPublica quotes the spokesman as having said. “The interim report mentioned that DOJ would seek feedback and update the tool accordingly, which was done.” The spokesman said the draft policy document “was not authorized for release.”

So, as Dean Wormer might have said, it’s like a double secret PATTERN score.

doublesecret200610
Ohio State University law professor Doug Berman wrote in his Sentencing Policy and Law blog that the ProPublica report was “yet another ugly example of how the Department of Justice acts more like a Department of Incarceration.”

The ProPublica report came in a week in which former Trump lawyer Michael Cohen was sent to home confinement, although he has served only a third of his sentence. The Cohen and Paul Manafort releases, a Marshall Project/NBC report said, are “raising questions about the BOP’s opaque process and its fairness.”

ProPublica reported that Senators Richard Durbin (D-Illinois) and Charles Grassley (R-Iowa), who were First Step Act co-authors, said last week the DOJ’s inspector general has agreed to examine BOP’s compliance with Barr’s home confinement directive and overall response to the COVID-19 pandemic.

ProPublica, Bill Barr Promised to Release Prisoners Threatened by Coronavirus — Even as the Feds Secretly Made It Harder for Them to Get Out (May 26)

Sentencing Law and Policy, “Bill Barr Promised to Release Prisoners Threatened by Coronavirus — Even as the Feds Secretly Made It Harder for Them to Get Out” (May 27)

The Marshall Project, Michael Cohen and Paul Manafort Got to Leave Federal Prison Due to COVID-19. They’re The Exception (May 21)

– Thomas L. Root

BOP Misses a Base, and SCOTUS Calls the Agency Out – Update for May 27, 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.

BUT WAIT, THERE’S MORE…

More in the continuing saga of Judge James Gwin versus FCI Elkton – in which the Cleveland-based Federal Judge issued a preliminary injunction against the Federal Bureau of Prisons facility because the conditions of confinement of inmates especially vulnerable to COVID-19 was likely to constitute “deliberate indifference” (a term loaded with 8th Amendment implications)… and the BOP ran to the Supreme Court to complain about an (allegedly) out-of-control federal district court.

yerout200527Yesterday, the Supreme Court denied the BOP’s request that it stay the Judge’s injunction by a 6-3 vote. It reminded me of my Little League umpiring days… an exuberant base runner chugging around the diamond on his way to a home run misses touching second base by a foot or so. When he makes it to home, I have to call him out. A lot of parents boo.

Like that, the Supreme Court called the BOP out on an obvious blunder: the BOP effectively wanted a stay of last Tuesday’s District Court order that directed it to take specific steps to get Elkton inmates moving to home confinement. But the BOP did not seek a stay in the Court of Appeals first. Like base running, you can’t get away with crossing home plate if you don’t tag all of the preceding bases.

Practically speaking, the Supremes’ denial means that the District Court’s demand that the BOP actually address its disastrous management of COVID-19 at FCI Elkton may proceed unimpeded.

Last month, as I described at the time, Judge James Gwin of the U.S. District Court for the Northern District of Ohio granted a preliminary injunction ordering BOP officials at FCI Elkton (located about 70 miles southeast of Cleveland) to identify, and then to start transferring or releasing to home confinement medically vulnerable prisoners. The BOP promptly appealed this order to the U.S. Court of Appeals for the Sixth Circuit, but the Sixth bounced the appeal in a brief order finding that Judge Gwin had not abused his discretion.

slowroll200421After that (at least according to the plaintiffs and Judge Gwin) the BOP slow-walked the identification and transfer of vulnerable inmates. After all, judges retire, pandemics fade… if the agency could only do nothing long enough, the problem might take care of itself.

A week ago, Judge Gwin had had enough, and let the BOP know it. Finding that that BOP had not complied with his directive from last month to clear out Elkton in order to protect vulnerable people from the spread of coronavirus (which has already killed nine Elkton inmates and 64 federal inmates nationally), the Judge said the BOP had “made only minimal effort to get at-risk inmates out of harm’s way.” As of May 8, 2020, five subclass members were “pending [home confinement] community placement. Six inmates were identified as maybe qualifying for home confinement. No inmates were deemed eligible for furlough transfer. But to date, Respondents have not identified any inmates whose confinement has actually been enlarged as a consequence of the preliminary injunction.”

The Judge ordered the BOP to loosen requirements on who qualifies for placement on home confinement under the Bureau’s CARES Act authority by

• eliminating requirements about length of his or her sentence an inmate has served (reversing the BOP’s position that an inmate had to have served 50% of his or her entire sentence, or 25% and have less than 18 months to go, in order to be eligible);

• disregarding whether they committed had certain low or moderate offenses within the past 12 months (reversing the BOP’s position that any disciplinary report in the past 12 months – from possessing a shank or taking an apple from the chow hall to eat later) – was automatically disqualifying);

• eliminating a BOP requirement that the inmate be a U.S. citizen in order to get CARES Act home confinement placement;

• eliminating the requirement that an inmate with a “low” PATTERN risk score be denied CARES Act home confinement placement; and

• disregarding the fact that an inmate is serving time for a “violent” crime (and “violence” is being defined more broadly by the BOP than by any other government agency interpreting federal law) if the crime occurred more than five years ago.

The Court instructed the BOP to explain in detail to the court why any inmate was denied CARES Act placement or Bureau recommendation for compassionate release furloughed or moved to another facility, the prisons bureau must also explain why.

The judge’s order observed that “[b]y thumbing their nose at their authority to authorize home confinement, Respondents threaten staff and they threaten low security inmates.”

Calvin thumb on nosePreviously, the BOP had tried without success to get the Sixth Circuit to stay the injunction. After last week’s order from the Judge spelling out what Elkton was to do right away, the BOP an application for a Supreme Court stay of Judge Gwin’s preliminary injunction “pending appeal of that injunction to the United States Court of Appeals for the Sixth Circuit and, if the court of appeals affirms the injunction, pending the filing and disposition of a petition for a writ of certiorari and any further proceedings in this Court.”

The problem with the BOP’s Supreme Court filing was evident from the get-go. Although it claimed to be seeking a stay of the April injunction, the BOP spent much of its brief complaining about last Tuesday’s order. As the inmate plaintiffs cheerfully pointed out in their response filed last Friday, the BOP had never asked the Sixth Circuit to review last week’s order, and jumping the appeals court to straight to SCOTUS is not allowed.

Yesterday, the Supremes agreed, but with a caveat:

[O]n May 19, the District Court issued a new order enforcing the preliminary injunction and imposing additional measures. The Government has not sought review of or a stay of the May 19 order in the U.S. Court of Appeals for the Sixth Circuit. Particularly in light of that procedural posture, the Court declines to stay the District Court’s April 22 preliminary injunction without prejudice to the Government seeking a new stay if circumstances warrant.

The Care Bears did not mean the Court cared much for the BOP's application for stay...
          The Care Bears did not mean the Court cared much for the BOP’s application for stay…

The Court seemed to be leaving the door open a crack, inviting the BOP to come back if it was unsuccessful in getting the Court of Appeals to stay the latest order.

Justices Thomas, Alito and Gorsuch voted to grant the stay, meaning that Chief Justice Roberts, Kavanaugh, Breyer, Ginsburg, Kagan and Sotomayor were in the majority, denying the stay.

Williams v. Wilson, Case No. 19A-1041, 2020 U.S. LEXIS 2951 (Supreme Court, May 26, 2020)

– Thomas L. Root

Starting Phase Seven (Because the First Six Have Worked So Well) – Update for May 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.

TIME FOR PHASE SEVEN…

The BOP launched Phase Seven of its COVID-19 Action Plan last week, announcing (among other things) that it will begin moving about 6,800 inmates who have been waiting in local detention centers across the U.S. to federal prisons to avoid further jail overcrowding.

fail200526 And why not? When Phase Five began on April 2, the BOP had 75 sick inmates, 39 sick staff and two inmate deaths from COVID-19. That was over 3,000 COVID-19 cases ago. With a record of success like that, the BOP really ought to stick with a winner, and implement Phase Seven.

BOP Director Michael Carvajal told BOP staff in his weekly video message that the BOP will set up three designated testing and quarantine sites, at FTC Oklahoma City, FCC Yazoo City and FCC Victorville. The transferees will be tested for COVID-19 when they arrive at the quarantine site facility and again when they are transferred to their designation institution.

No plans have been announced for mass testing of people currently in BOP facilities, although groups as diverse as the ACLU and the Council of Prison Locals (representing 30,000 BOP employees,  earlier this month called for universal testing in all prisons.

crazynumbers200519The number of inmate COVID-19 cases reported by the BOP dropped throughout the past week from 2,402 to 1,603, but the staff COVID-19 case numbers have remained stubbornly above 175. Likewise, the number of institutions with active COVID-19 cases has remained above 50. Three more inmates died last week, bringing the total dead to 60. More ominously, at least two facilities that had reported COVID-19 inmate cases but were later declared to be coronavirus-free are back on the list: FCI Talladega reports one inmate and one staff member with the illness, and FMC Devens- with no cases just two weeks ago – reports 24 inmates and two staff sick with the virus.

The real problem with the BOP numbers is that no one really believes them. Reuters reported last week that while a May 6 report by the Centers for Disease Control and Prevention that surveyed local, state and federal prisons for COVID-19 reported 5,000 inmate cases. Reuters performed its own data analysis, and found about 17,300, over three times CDC’s tally.

The infectious disease experts who filed the Supreme Court amicus brief in the FCI Elkton case noted that “over 3,000 confirmed cases of coronavirus have emerged in BOP’s federal correctional facilities. Given the dearth of testing, these numbers likely dramatically understate the problem.”

gtfo200526Incidentally, at the facility that started it all for the BOP, FCC Oakdale, has resumed universal testing of inmates. Also, last Friday, USA Today reported that the BOP reassigned Oakdale warden Rodney Myers to “temporary duty” at the BOP South Central Regional Office.

Although the BOP did not elaborate on the reason for the move, Ronald Morris, president of the local union representing the corrections workers, told the Wall Street Journal last Friday, “Warden Myers’s continued negligence and endangering of staff and inmates was creating a more difficult situation to control the spread of Covid-19.”

USA Today said that Myers did not immediately respond to requests for comment.

Reuters, Across U.S., COVID-19 takes a hidden toll behind bars (May 18)

USA Today, Feds reassign warden at Louisiana prison hit hard by coronavirus (May 22)

Wall Street Journal, Warden at Prison Besieged by Coronavirus Is Reassigned (May 22)

KDBC-TV, El Paso, Texas, Federal prison system to begin moving nearly 7K inmates (May 22)

– Thomas L. Root

The World Turned Upside Down – Update for May 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.

BOP SCURRIES TO SUPREME COURT IN BID TO STOP DISTRICT COURT ORDER TO PROTECT VULNERABLE INMATES

Now for the continuing saga of Judge Gwin versus FCI Elkton – in which the Cleveland-based federal judge issued a preliminary injunction against the Federal Bureau of Prisons facility because the conditions of confinement of inmates especially vulnerable to COVID-19 was likely to constitute “deliberate indifference” (a term loaded with 8th Amendment implications)… as the BOP runs to the Supreme Court to complain about an (allegedly) out-of-control federal district court.

bartleby200521Last month, as we described at the time, Judge James Gwin of the U.S. District Court for the Northern District of Ohio granted a preliminary injunction ordering BOP officials at FCI Elkton (located about 70 miles southeast of Cleveland) to identify, and then to start transferring or releasing to home confinement medically vulnerable prisoners. The BOP promptly appealed this order to the U.S. Court of Appeals for the Sixth Circuit, but the Sixth bounced the appeal in a brief order finding that Judge Gwin had not abused his discretion.

Bartleby the Scrivener has nothing on the BOP. Having lost its interlocutory attempt to force the inmate plaintiffs into interminable trench warfare over their habeas corpus action – and thus let time and inmate attrition take care of Elkton’s coronavirus outbreak – the BOP simply chose to ignore the Judge’s injunction. Last Tuesday, an apparently fed-up Judge Gwin let the BOP know who in the case had a robe and gavel, and who did not.

On Tuesday, the Court ruled that BOP officials had not complied with his directive from last month to clear out Elkton to address the spread of coronavirus, which has already killed nine Elkton inmates (out of 58 federal inmates nationally) and infected over 100 others. The Judge noted that of 837 inmates identified as medically vulnerable to COVID-19, the BOP had “made only minimal effort to get at-risk inmates out of harm’s way. As of May 8, 2020, five subclass members were “pending [home confinement] community placement.” Six inmates were identified as maybe qualifying for home confinement. No inmates were deemed eligible for furlough transfer. But to date, Respondents have not identified any inmates whose confinement has actually been enlarged as a consequence of the preliminary injunction.”

Charitably characterizing the BOP’s efforts to date as “limited,” Judge Gwin ordered the BOP to loosen requirements on who qualifies for placement on home confinement under the Bureau’s CARES Act authority by

• eliminating requirements about length of his or her sentence an inmate has served (reversing the BOP’s position that an inmate had to have served 50% of his or her entire sentence, or 25% and have less than 18 months to go, in order to be eligible);

• disregarding whether they committed had certain low or moderate offenses within the past 12 months (reversing the BOP’s position that any disciplinary report in the past 12 months – from possessing a shank or taking an apple from the chow hall to eat later) – was automatically disqualifying);

• eliminating a BOP requirement that the inmate be a U.S. citizen in order to get CARES Act home confinement placement;

• eliminating the requirement that an inmate with a “low” PATTERN risk score be denied CARES Act home confinement placement; and

• disregarding the fact that an inmate is serving time for a “violent” crime (and “violence” is being defined more broadly by the BOP than by any other government agency interpreting federal law) if the crime occurred more than five years ago.

The judge instructed the BOP to explain in detail to the court why any inmate was denied CARES Act placement or Bureau recommendation for compassionate release furloughed or moved to another facility, the prisons bureau must also explain why.

Calvin thumb on noseThe judge’s order observed that “[b]y thumbing their nose at their authority to authorize home confinement, Respondents threaten staff and they threaten low security inmates.”

But the BOP immediately struck back. Late yesterday, the BOP filed an application for a Supreme Court stay of Judge Gwin’s preliminary injunction “pending appeal of that injunction to the United States Court of Appeals for the Sixth Circuit and, if the court of appeals affirms the injunction, pending the filing and disposition of a petition for a writ of certiorari and any further proceedings in this Court.”

donothing200521

After the predictable self-serving explanations to the Supreme Court that “the Federal Bureau of Prisons (BOP) is working assiduously to mitigate those risks within its facilities by implementing a multi-phase plan it developed in January 2020,” the application for stay complains that “the district court’s injunction — now augmented by the court’s sweeping May 19 order — would undermine BOP’s systemic response to the COVID-19 pandemic; intrude the Judicial Branch on policy decisions that have been assigned to expert prison administrators; and require BOP to defy the CDC’s guidance to restrict prisoner movements during the pandemic to avoid unnecessary risk of spreading the virus.”

Justice Sonia Sotomayor, who is assigned as Circuit Justice for the Sixth Circuit, has ordered the inmate petitioners to file a response by tomorrow morning.

Order, Dkt. 85, Wilson v. Williams, Case No. 4:20cv00794 (N.D. Ohio, issued May 19, 2020)

Application for a Stay of the Injunction Issued by the United States District Court for the Northern District of Ohio and for an Administrative Stay, Williams v. Wilson, Case No. 19A-____ (Supreme Court, May 20, 2020)

– Thomas L. Root

It’s a Miracle! – Update for May 13, 2020

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

MIRACULOUS DOINGS AT THE BOP

Yesterday brought two miracles at the Bureau of Prisons, one physical and one legal.

Following a tour of FCI Terminal Island yesterday, Congresswoman Nanette Barragán, D-California, said the conditions inside the prison fall short of the federal government’s responsibility to protect inmates during the COVID-19 pandemic.

“I’m very concerned about what I saw in there,” Barragán said during a press conference. “The bottom line here is the federal government has a duty and an obligation to protect inmates and their health.”

Apparently Barragán’s complaints did not fall upon deaf ears. As of Monday night, FCI Terminal Island was reporting 693 inmates sick with coronavirus. As soon as Barragán completed her visit, Terminal Island’s sick inmate count fell to 150 inmates, an amazing 79%!

It’s a miracle! In a mere 24 hours, 543 inmates suddenly recovered from COVID-19! The Lord Himself could hardly have done better.

And some people wonder why no one believes the BOP’s numbers…

lackfaith200513Meanwhile, on the other coast, a legal miracle: we learn that as least as far as the BOP is concerned, George Orwell was right – some animals really are more equal than others.

Three weeks after the BOP told hundreds of inmates who had been tapped for home confinement under the CARES Act that they would not be going home after all, because of a heretofore unannounced BOP policy that required an inmate to serve 50% of the full sentence prior to CARES Act approval, inmate Paul Manafort was sent to home confinement from FCI Loretto after serving less than a third of his sentence.

FCI Loretto, of course, is a hotbed of infection, with a total of zero COVID-19 cases so far. 

According to news reports, “prison officials have wide latitude when considering these releases on a case-by-case basis.” “Discretion,” of course, means that some guys with 54 months yet to serve on a 71-month sentence can be sent home from a place that doesn’t have any coronavirus.

Is this a great country or what? If you wonder, check with all of those vulnerable inmates who were denied home confinement from places like Butner, Elkton, Terminal Island, Fort Worth and Lompoc because they had only served 45% of their sentences…

Long Beach, California, Post, Terminal Island is failing to protect inmates from COVID-19, congresswoman says after tour (May 13, 2020)

BOP, Coronavirus Map (May 13, 2020)
Yahoo.com, Former Trump campaign chairman Paul Manafort released to home confinement amid coronavirus concerns (May 13)

– Thomas L. Root

BOP Ponies Up Some (Questionable?) Private Prison COVID-19 Numbers – Update for May 12, 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 STARTS REPORTING COVID-19 IN PRIVATE PRISONS, BUT QUESTIONS REMAIN

numbers160704After a letter from 41 advocacy groups and 55 families of inmates held at private prison North Lake CI, Baldwin, Michigan – all of them aliens convicted of federal crimes – the Bureau of Prisons has finally started providing some summary figures for federal inmates in private prisons suffering from COVID-19.

The letter, sent last week to Attorney General William Barr and BOP Director Michael Carvajal, accused North Lake operator GEO Group and the BOP of opacity as to COVID-19 at the facility:

Despite its status as a federal facility operating under the authority of the BOP, and despite GEO’s knowledge of positive test results among staff since the first week of April, the North Lake Correctional Facility has never appeared on [the BOP COVID-19 map]. Only daily requests from journalists, addressed first to the GEO Group and then to the Michigan Department of Health and Human Services, have yielded any results. Precise figures for incarcerated people who have tested positive remain unavailable. Families continue to search for any information, while the risks facing the more than 1,500 people held at this facility, where social distancing is out of the question, grow more severe every day.

The BOP first posted information on the private prisons last Friday, reporting 66 active COVID-19 cases at five facilities. North Lake reported 18. As of last night, the number had risen to 82 active cases. North Lake still reported 18.

Critics complain that the report is not enough. University of North Carolina professor Lauren Brinkley-Rubinstein, who is tracking  COVID-19 in state and federal prisons, said, “You cannot convince me that there are only 110 cases in these prisons. It’s impossible to understand what is going on at the facilities.”

Two of the private facilities, Great Plains CI in Oklahoma (27 cases) and Rivers CI in North Carolina (18 cases), qualify as COVID-19 “clusters” under CDC guidelines. States that have responded to prison clusters with comprehensive testing have found that a majority of inmates test positive for coronavirus.

numbers180327The Professor is right: the math does not work. According to daily COVID-19 data provided by Michigan’s Dept. of Health and Human Services, Michigan’s two federal prisons have 110 prisoner cases as of last Saturday. DHHS does not provide a breakdown, but on Saturday, BOP reported that FCI Milan had 14 inmates with COVID-19. If the Milan number is right, then North Lake 90 infected inmates. If the North Lake number is right, the Milan’s number is wrong. Perhaps both are undercounts.

BOP, COVID-19 in Private Prisons (May 10, 2020)

Michigan Advance, ‘It’s hell’: COVID-19 concerns grow at federal immigrant prison in Baldwin (May 10, 2020)

Letter to Attorney General William J. Barr (May 8, 2020)

The Marshall Project, Why Did It Take the Feds Weeks to Report COVID-19 Cases In Privately Run Prisons? (May 8, 2020)

– Thomas L. Root

BOP’s Coronavirus Toll Keeps Climbing – Update for May 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.

EVERYTHING’S UNDER CONTROL, BUT THE COUNT CLIMBS…

control200511The Bureau of Prison’s toll of inmates infected with coronavirus continued its meteoric climb last week, increasing 71% from 1,926 last Sunday night to 3,385 as of 5 p.m. yesterday. Six weeks into the BOP’s execution of its guidance memos, pandemic plans for preparedness, daily briefings and “comprehensive management approach for oversight of the situation,” inmates are dying of COVID-19 at a rate of better than one a day. The death toll today stands at 48.

At the Lompoc, California, facilities, the number of inmates with COVID-19 shot up to 842 this week, making it the largest federal prison outbreak. Lompoc surpassed FCI Terminal Island, California, in the nation, where 693 inmates have contracted the virus.

Nearly 70% of the FCI Lompoc inmates tested thus far have been positive, a number that exploded by more than 300 in recent days, officials said Friday. FCI Lompoc and Terminal Island now account for about 47% of all the federal inmates who have tested positive nationwide. Both prisons have done widespread testing of hundreds of inmates even without symptoms.

At a neighboring Lompoc medium-security prison on the same grounds, 31 inmates and 14 staff have become infected, officials said. Two Lompoc Medium inmates have died after contracting the virus.

Santa Barbara County Supervisor Gregg Hart on Friday expressed dismay with the BOP’s cooperation with the County. “We have been consistently rebuffed by prison authorities,” he said. FCI Lompoc accounted for 310 of the 311 new coronavirus cases in Santa Barbara County last Friday.

Senator Kamala Harris (D-California) telephoned the Terminal Island warden last week to demand to know how the virus rampaged through that facility. KCAL-TV, Los Angeles, reported that Harris told Warden Felicia Ponce she thought the institution was unprepared for the outbreak and that the warden should be pushing to release low-security inmates to home confinement. KCAL said Harris convinced the warden to agree to allow inmates to place phone calls, something that hasn’t been allowed since the outbreak began.

Meanwhile, the BOP announced that a 20-bed temporary hospital care unit has been built in a vacant Lompoc factory. The facility, planning for which started April 10, opened last Wednesday.

BOPPAO200511The BOP reported 619 active cases at FMC Fort Worth as of yesterday, “but they won’t share how many total cases they’ve had or how many of the 1,472 inmates are being tested,” according to WFAA-TV, Dallas. The prison recently added outdoor tents with room to separate 123 inmates, but the TV station said “it’s unclear if they’re using it.”

Last Wednesday, the BOP announced in plans to “substantially expand testing starting at BOP detention and quarantine sites,” using test instruments obtained from the US Dept of Health and Human Services. Three quarantine sites already have one machine each, which can do four tests an hour: FCI Gilmer, West Virginia; FTC Oklahoma City; and FCC Yazoo, Mississippi.

The Bureau said its testing protocols include that (1) inmates who have a negative test result and are asymptomatic will be placed in quarantine for a 14-day period; (2) inmates who have a positive test result but are asymptomatic, will be placed in isolation; (3) inmates who are symptomatic are placed in isolation prior to testing and will be immediately tested; and (4) inmates who have a Negative test result but are symptomatic will be placed in isolation.

On the litigation front, the judge in the ACLU case against FMC Devens last Friday denied the inmate plaintiffs a preliminary injunction ordering the release of inmates. The judge ruled that the plaintiffs had not shown the would succeed on the merits, because “both the BOP and FMC Devens have made significant changes in operations in response to COVID-19.” The judge wrote, “These affirmative steps may or may not be the best possible response to the threat of COVID-19 within the institution, but they undermine an argument that the respondents have been actionably deliberately indifferent to the health risks of inmates.”

But during a sentencing last Tuesday, a Southern District of New York federal judge blasted Attorney General William Barr’s failure to improve conditions at BOP facilities around the country. In giving a bank fraud defendant time served for the 15 months he had spent in jail awaiting trial, the Judge called MDC Brooklyn’s failures during the coronavirus crisis “very serious” but “not surprising,” noting that

to my knowledge, there have been no forthcoming serious reviews of the living conditions at either the MCC or the MDC, which are only many times compounded by this coronavirus that is plaguing the country, but in particular, the country’s prisons. It is an outrage, I have to say, and I’m very disappointed that the Attorney General has not followed through on making a thorough investigation of conditions that those of us in the business, as it were, are all too familiar with, and more importantly, has not implemented appropriate changes.

Last Friday, the wardens of those prisons told the Eastern District of New York that they had tested only 24 inmates in the last six weeks, out of over 2,400 in the two facilities. Eleven of those tests were positive.

taskforce200511The inmate plaintiffs in the FCI Elkton case asked Norther District of Ohio Judge Gwin to enforce his prior order that the facility transfer or release the 837 vulnerable inmates identified in the Warden’s filing two weeks ago. Complaining that Elkton had released none of the identified inmates, the plaintiffs wrote, “of the 837 known subclass members – a number that is known to be underinclusive – Respondents have approved six people, or 0.7% of the subclass, for some form of release. That is equal to the number that had already been approved for home confinement transfers before Respondents answered the Petition in this case. Respondents have not, in other words, stepped up their pace in response to this Court’s Order.”

“Instead,” the plaintiffs argued, “they appear to be applying a set of unattainable filtering criteria. The reasoning for each rejection remains known only to Respondents, as they refuse to answer discovery about the conditional class. Across multiple cases, the BOP has taken contradictory and shifting views on what criteria apply for home confinement, for example.”

In the FCI Danbury case, the inmate petitioners are awaiting a Connecticut federal judge’s decision on their preliminary injunction demand. Meanwhile, the New Jersey ACLU has sued FCI Fort Dix, demanding release of medically vulnerable inmates to limit the prison’s population, and asking that the prison adopt the Centers for Disease Control guidance “regarding testing, medical isolation, quarantine, and social distancing for those who remain, to ensure constitutionally-compliant custody.”

If the prison does not do that ACLU-NJ Legal Director Jeanne LoCicero said in a statement, “FCI Fort Dix is speeding toward a public health catastrophe.” The BOP reported yesterday that 31 FCI Ft. Dix inmates have COVID-19.

Los Angeles Times, 70% of inmates test positive for coronavirus at Lompoc federal prison (May 9)

San Jose Mercury-News, 3 California prison inmates die from COVID-19 complications (May 7)

KCAL-TV, Families Push For Inmates At Terminal Island To Be Released Due To COVID Outbreak (May 8)

BOP, Hospital Care Unit at FCC Lompoc (May 4)

BOP, Bureau of Prisons To Expand Rapid Testing Capabilities (May 7)

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

New York Daily News, Judge on Jeffrey Epstein case rips AG William Barr, saying his failure to fix Bureau of Prisons is ‘an outrage’ (May 6)

Wilson v. Williams, Case No. 4:20cv794 (N.D.Ohio)

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

Chunn v. Edge, Case No. 1:20cv1590 (E.D.N.Y.)

Letter to Judge Mauskopf in response to Adm Order 2020-14 (May 7)

NJ.com, N.J. federal prison is becoming a ‘deathtrap,’ ACLU says, seeking release of vulnerable inmates (May 4)

– Thomas L. Root

Beating Up The BOP Over CARES Act Home Confinement – Update for May 6, 2020

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

BOP TAKING IT ON THE CHIN OVER COVID-19 HOME CONFINEMENT MOVING TARGET

Hand in hand with criticism of the BOP’s COVID-19 management, courts and the media are blasting the Bureau’s bungling of its CARES Act home confinement authority.

punchinface180423For those of you who just came in, the CARES Act authorized the BOP to send inmates to home confinement during the COVID-19 emergency, in order to get inmates with medical vulnerabilities out of prisons ahead of the novel coronavirus pandemic.  Attorney General William Barr directed the BOP to act expeditiously, and laid out a series of standards by which the BOP should measure whether an inmate should be sent home.

The BOP applied the standards, and told a lot of people they would be going home. Then, in an abrupt about-face, the BOP decided that the AG’s standards weren’t enough. The Bureau retroactively applied a requirement that the inmate have completed 50% of his or her sentence in order to qualify for CARES Act home confinement, and told many of the people in pre-release quarantine that they would not be going to home confinement after all.

Then the DOJ said that the 50% standard wasn’t a standard at all, and then the BOP said, well, maybe not a standard, just a priority. And the shell game continued…

Last week, the BOP and DOJ were sharing the flak for the snafu.

Forbes noted, “Attorney General Barr gave some direction to the BOP and it dropped the ball. Individuals who were told they were being released from prison… have now been told they are staying put. This could have been avoided. The strain on the court system has been burdened with Compassionate Release motions that have wasted the time of judges, defense attorneys and prosecutors when all along the BOP could have acted to release vulnerable inmates. These resources, this personal pain, could have been avoided if the BOP just used its own policies.”

AP wrote, “The Bureau of Prisons has given contradictory and confusing guidance how it is deciding who is released to home confinement in an effort to combat the virus, changing requirements, setting up inmates for release and backing off and refusing to explain how it decides who gets out and when.”

shellgame200506NBC analyst and former US Attorney Glenn Kirschner last week blamed Barr. “Shifting and changing inmate release policies have caused widespread confusion. The lack of a clear, common-sense Justice Department/Bureau of Prisons policy prompted one federal judge to sternly rebuke the government, saying the procedures were ‘illogical’ and ‘kafkaesque…’ Simply put, the Bureau of Prisons flip-flops are yet another example of Barr’s lack of leadership and a sign of a Justice Department in free fall.”

In a lawsuit by inmates at the Federal Medical Center in Devens, Massachusetts, against BOP management of the COVID-19 pandemic there, the BOP explained to the court that some of the petitioning inmates were ineligible for CARES Act release under the BOP’s 50%-of-sentence standard. The petitioners shot back, “Although Respondents use words like “required criteria” and “ineligible” to describe their decision to bar so many people from being transferred to home confinement, they cannot defeat a claim of deliberate indifference by arguing they have tied their own hands with bureaucratic red tape. That is not a defense; it’s a confession.”

Forbes, The Federal Bureau Of Prisons’ “List” Has Caused Confusion in Courts and Prisons (April 24, 2020)

AP, Federal inmates battle mixed messages on home confinement (April 28, 2020)

NBC, Is Michael Cohen getting out of prison? Why Barr’s coronavirus release rules deserve scrutiny (April 28, 2020)

Petitioner’s Reply (Dkt. 38), Grinis v. Spaulding, Case No. 20cv10738 (filed April 27, 2020)

– Thomas L. Root

Last Week Was Lousy for the BOP… and Inmates – Update for May 4, 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.

SKYROCKETS IN FLIGHT

The Bureau of Prison’s official count of inmates with COVID-19, already widely disbelieved as being a gross undercount, skyrocketed last week from 799 on Sunday night to 1,926 inmates at 51 facilities last night.

rocket190620About 70% of all infections are at the federal prisons at Terminal Island, California, the Federal Medical Center at Ft. Worth, Texas, and the Butner prison complex in North Carolina. Terminal Island has the highest number of COVID-19 cases at 620 inmates.

Eleven inmates died last week, bringing the total COVID-19 deaths in the BOP to 38. The one that sparked the most outrage was that of Andrea Circle Bear, a 30-year old pregnant inmate with a 26-month sentence. Assigned to the women’s Federal Medical Center Carswell, also in Fort Worth, she was put on a ventilator March 31 and delivered her child by caesarean section the next day. Ms. Circle Bear never came off the ventilator, and died of COVID-19 on Apr 28.

“It’s an outrage that Andrea Circle Bear, a near full-term, pregnant woman with underlying medical conditions, lost her life while in federal custody,” Congressman Jerrold Nadler (D-New York), chairman of the House Judiciary Committee, told Reuters. “We have a moral and constitutional duty to prevent additional deaths among those who are detained or imprisoned.”

Sen. Richard Durbin (D-Illinois), who sits on the Senate Judiciary Committee, said, “Simply put, this tragic death was preventable.”

The BOP warned a week ago that as it began testing, the numbers would go up. But the BOP may not have been prepared for what the tests show: figures provided to Associates Press last week showed that out of 2,700 tests systemwide, nearly 2,000 inmates –¬ over 70% – have come back positive, strongly suggesting there are far more COVID-19 cases in the system than anyone knows.

corona200313Felicity Rose, director of research and policy for criminal justice reform at the progressive advocacy group FWD.US, said “the lack of testing is leading to a false sense of security,” NPR reports.

“We know that it’s spreading among staff, and that staff are bringing it into and out of the facilities,” Rose said. “We know there are people who are asymptomatic and are able to pass it along, but we just don’t know how many.”

AP reported that BOP’s response “to the growing coronavirus crisis in prisons has raised alarm among advocates and lawmakers about whether the agency is doing enough to ensure the safety” of inmates. At the same time, the AP said, BOP “communication policies are leaving families in the dark about their loved ones’ potentially life-threatening condition.”

The BOP reports on its website that MDC Brooklyn and MCC New York have no reported inmate COVID-19 cases as of May 3. In a filing that same day, however, the wardens of those facilities told the US District Court that they had 11 confirmed inmate COVID-19 cases.

In the class action suit pending against the BOP’s management of COVID-19 at FMC Devens, an expert on infectious diseases in prisons told the court, “As of April 26, 2020 FMC-Devens was reporting a single confirmed prisoner case of COVID-19. But because the facility is testing only symptomatic prisoners, this data point is not meaningful. It certainly does not mean that the facility is safe. Everything we know about the presentation and transmission of this disease points to the fact that when you have one confirmed case under a symptomatic protocol, it is fair to assume that there are many more cases at that facility..”

Following the Dept of Justice Inspector General’s decision to investigate whether the BOP is complying with available guidance and best practices on COVID-19 outbreaks, Senators Durbin and Chuck Grassley (R-Iowa) asked the IG to also look at whether the BOP is properly using its legislative authority to transfer at-risk inmates to home confinement:

We are concerned that BOP is not fully and expeditiously implementing relevant statutory authority and directives from the Attorney General. We are also concerned about how closely BOP is following CDC guidance or taking other preventive measures to adequately protect BOP staff and inmates from the spread of COVID-19… We also worry that BOP is significantly underestimating the rate of COVID-19 infection in BOP facilities because BOP has not yet conducted the number of tests on staff or inmates appropriate for facilities where a highly contagious virus can be easily spread.

Although an ACLU class action case against FCI Oakdale (Louisiana) was dismissed on jurisdictional grounds ten days ago, at least five other cases are active. In Massachusetts, the judge in the FMC Devens case heard argument on a preliminary injunction last week, and is expected to rule this week.

A motion for a preliminary injunction has been filed in Connecticut federal court by a class of inmates at FCI Danbury, seeking to have female inmates and vulnerable male inmates placed in home confinement immediately. The plaintiffs argue that at FCI Danbury, site of a what they call a “dangerous and uncontrolled” COVID-19 outbreak, the BOP has failed to effectively protect inmates.

shredder200504In a suit against MDC Brooklyn, the report of the plaintiffs’ expert – Dr. Homer Venters – criticized the sick call request system, hygiene, and using temperature measurement to diagnose COVID-19. Of more concern, the report accused MDC Brooklyn of destroying records of inmate sick call. Dr. Venters, an epidemiologist specializing in disease in prisons, told the court he was “alarmed by the facility’s failure to implement simple procedures, in-line with the Center for Disease Control guidelines, that could identify patients ill with COVID-19, prevent the spread of COVID-19 throughout the facility, and ensure that high-risk patients receive adequate care.”

In a similar suit against the MCC New York, the warden complained to the court last Friday that the BOP should not permit a similar inspection of its facility by a plaintiff’s expert. “Allowing an inspector to enter MCC would not only raise the usual security concerns,” the warden said in a filing, “but would present particular concerns given the COVID-19 pandemic. One key element of BOP’s protocol in response to the pandemic is to limit to an absolute minimum the number of people entering the facility, as discussed above. Permitting an outside inspector to enter MCC would run counter to those efforts.”

In Ohio, where a federal judge ruled that the BOP’s operation of FCI Elkton amounted to an 8th Amendment violation, BOP lawyers argued last week that the measures Elkton took to curb the virus’s spread had been effective. In an emergency motion to the 6th Circuit for a stay of the district court’s order, the BOP contended that its COVID-19 containment “efforts have been working as the number of new cases has been reduced.” The 6th Circuit denied the BOP’s request for stay.

Pinocchio160812Writing in Forbes, Walter Pavlo said, “I’m not sure where the attorneys got their stats but according to the BOP’s own website that tracks (under-reports) COVID-19 spread showed a marked increase in cases. Between the judge’s order on April 22 and the government response with this claim on April 28, positive COVID-19 cases went from 566 to 1,313… so I’m calling that one a Pinocchio. In fact, since the BOP first started tracking the outbreak, the numbers have increased every day and they are going up at higher rates since more testing began.”

In the Elkton lawsuit, the BOP was forced by the judge to publish a list of inmates who were medically vulnerable to COVID-19. The list of 837 inmates, released on Thursday, amounted to half of the institution.

Meanwhile, The Dallas Morning News reported that FMC Ft. Worth, a “federal prison that houses sick and elderly inmates, has emerged as a COVID-19 hot spot, setting staff and inmates on edge and fueling controversy over how the prison system is handling the pandemic.” As of last night, FMC Ft. Worth had 445 inmate cases, with four dead.

But the worst outbreak is in California, at FCI Terminal Island, just south of Los Angeles. The prison’s 620 coronavirus cases followed mass testing of more than 1,000 inmates by Los Angeles County Public Health officials, according to the BOP. The facility now accounts for more than a third of documented federal prison inmates with the coronavirus.

USA Today, More than 1,500 federal prisoners now have COVID-19 as officials expand testing (April 29, 2020)

The New York Times, U.S. Federal Inmate Dies of COVID-19 Weeks After Giving Birth While on a Ventilator (April 28, 2020)

The Marshall Project, A State-by-State Look at Coronavirus in Prisons (May 1, 2020)

AP, Over 70% of tested inmates in federal prisons have COVID-19 (April 29, 2020)

NPR, ‘A Ticking Time Bomb’: Advocates Warn COVID-19 Is Spreading Rapidly Behind Bars (April 28, 2020)

Letter to Judge Mauskopf in response to Administrative Order 2020-14 (April 30, 2020)

Forbes, After Seeing Federal Bureau Of Prisons Up Close, Federal Judges May See Sentencing Differently In Future (May 3, 2020)

Sens. Richard Durbin and Charles Grassley, Letter to DOJ Inspector General (April 21, 2020)

Declaration of Prof. Lauren Brinkley-Rubinstein, Dkt.38-1, Grinis v. Spaulding, Case No. 20cv10738 (D.Mass., filed April 27, 2020)

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

Chunn v. Edge, Case No. 1:20cv1590 (EDNY)

Fernandez-Rodriguez v. Licon-Vitale, Case No. 1:20-cv-03315 (S.D.N.Y.)

Wilson v. Williams, Case No. 4:20cv794 (N.D. Ohio)

Dallas Morning News, 3 deaths and rampant infections at a Fort Worth lockup are fueling criticism of how federal prisons are handling the pandemic (April 29, 2020)

Los Angeles Times, Coronavirus outbreak at Terminal Island prison worsens: 5 dead, 600 infected (May 1, 2020)

– Thomas L. Root