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

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

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

TWIN PEAKS

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

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

BOPCOVOD200720

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

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

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

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

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

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

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

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

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

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

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

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

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

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

COVIDheart200720

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

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

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

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

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

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

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

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

– Thomas L. Root

The Virus is Still With Us, But the Lawsuits Are Not – Update for July 8, 2020

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

COVID-19 REALITY KICKS BOP, INMATES HARD

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

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

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

JAMAGraph200708

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

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

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

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

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

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

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

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

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

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

– Thomas L. Root

Death, SWAT and Smokes: A Quick Trip Around the BOP – Update for June 23, 2020

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

NEWS FROM AROUND THE BOP

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

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

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

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

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

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

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

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

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

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

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

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

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

– Thomas L. Root

Coronavirus Simmers While BOP Gets Fried – Update for June 22, 2020

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

COVID-19 AIN’T GOIN’ AWAY

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

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

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

coronadog200323

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

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

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

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

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

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

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

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

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

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

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

– Thomas L. Root

No COVID-19 Curve Flattening in the BOP – Update for June 9, 2020

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

COVID-19 ROUNDUP

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

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

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

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

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

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

COVID joints200609

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

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

That reconsideration motion is pending.

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

Inmate deaths200609

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

– Thomas L. Root

BOP Gets Grilled On Home Confinement – LISA Newsletter for June 8, 2020

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

LAWMAKERS’ QUESTIONS ABOUT BOP HOME CONFINEMENT ARE GETTING SHARPER

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

– Thomas L. Root

‘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