Tag Archives: BOP

COVID Deja Vu… All Over Again – Update for January 4, 2022

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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.

JANUARY 2022’S KIND OF LIKE JANUARY 2021

deadcovid210914A year ago, the Bureau of Prisons was in the grip of a major COVID outbreak. How major? Back on New Year’s Day 2020, there were 6,831 sick inmates and 1,750 sick staff.

Things aren’t quite that bad right now, but as of last night, the number of sick inmates had increased 425% over the past two weeks, from 289 on December 20 to 1,516 currently. Sick staff increased 110% from 243 to 511. COVID is present at 94% of BOP facilities.

The percentage of vaccinated inmates inched up last week a half a point to 73.8%. Staff vaxxes still lag, up only 3/10th of a point to 69.1%.

Meanwhile, the nation is a hot mess. Last year, the country had 231,000 cases on New Year’s Day. Yesterday, there were 444,000.

A Fort Worth Star-Telegram story last Thursday reported on a December 16th FMC Fort Worth COVID death. The story noted that the inmate “is the 16th man to die from COVID-19 at FMC Fort Worth, according to BOP data. At the prison, ten incarcerated men and seven BOP staffers had confirmed COVID-19 cases as of Thursday… People incarcerated in prisons are at least 4.77 times more likely to be infected with COVID-19 than the general population, according to the Federal Public Community Defenders. At the federal women’s prison in Fort Worth, FMC Carswell, 70 women tested positive for COVID-19 as of Thursday and 22 BOP staff members had the virus. According to BOP data, FMC Carswell, — which is also a federal medical facility — had the 6th highest number of cases of all BOP facilities as of Thursday.”

Vaccinesticker211005In Connecticut, a female inmate at FCI Danbury has sued the BOP alleging that she was wrongly passed over for CARES Act home confinement because she cannot safely be vaccinated against COVID-19. 

Monique Brady, 46, contends in her December 16, 2021, complaint filed that she was wrongly passed over for home confinement even though she has underlying medical conditions that make her vulnerable to the disease. According to filings in Whitted v. Easter, the class-action litigation against FCI Danbury over COVID at the institution, which was settled largely in the inmates’ favor, Brady received one dose of vaccine but not the second. The institution’s medical staff advised her not to receive a second shot due to her reaction to the first one.

The BOP has previously told the Whitted v. Easter court that it would not consider home confinement for inmates who did not get fully vaccinated.

Brady claims she is at risk for COVID due to her taking prescribed steroids for a medical condition, obesity, a history of smoking, and high blood pressure. She asks the district court to issue an order that she be placed on CARES Act home confinement.
 

miracle181227The BOP continues to declare inmates recovered under its very liberal reading of CDC guidelines. Reality is not as forgiving. A research paper released last week reported that “Covid-19 can spread within days from the airways to the heart, brain and almost every organ system in the body, where it may persist for months.” In what Bloomberg described as the most comprehensive analysis to date of the SARS-CoV-2 virus’s distribution and persistence in the body and brain, scientists at the National Institutes of Health said they found the pathogen is capable of replicating in human cells well beyond the respiratory tract.”

The report pointed to delayed viral clearance as a potential contributor to the persistent symptoms wracking so-called long-haul COVID sufferers.

Ft Worth Star-Telegram, Man is 16th to die from COVID-19 at Fort Worth prison; cases spike at women’s facility (December 30, 2021)

Connecticut Insider, Lawsuit: Unvaccinated woman convicted in $10M Ponzi scheme a ‘sitting duck’ for COVID at CT prison (January 3, 2022)

Bloomberg, Coronavirus Can Persist for Months After Traversing Body (December 26, 2021)

Daniel Chertow, et al., SARS-CoV-2 infection and persistence throughout the human body and brain (Nat’l Institutes of Health, December 20, 2021)

– Thomas L. Root

BOP COVID Numbers Skyrocketing – Update for December 30, 2021

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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.

O-M-CHRON!

omicron211230COVID numbers, both in the Federal Bureau of Prisons and nationally, continue to shoot upward as COVID omicron has become the dominant strain of coronavirus in the USA.

As of last night, the BOP broke 1,000 inmate cases (1,011), up 25% in one day, with staff cases at 387, up 12% overnight. COVID was present in 114 of 122 facilities, or 93% of all BOP prisons. As of last week, the BOP reported that 73% of inmates and 69% of the staff are vaccinated.

Nationally, the country added nearly a half-million cases yesterday. Experts are estimating over 140 million people will catch COVID in the next four weeks.

BOP COVID-19211230

The big COVID flareup in the system last week was at FPC Alderson, a female facility. Forbes reported on Christmas Eve that of the 665 “inmates at the institution, 1o8 have active COVID cases and 43 have recently recovered … over 20% are currently or recently infected.” An attorney who represents women at the facility told Forbes, “The conditions there are just abhorrent. Women are sick, there is no hot water in the quarantine unit and staff is short. I’ve contacted the mayor (of Alderson, WV), the Bureau of Prisons and anyone who will look into this crisis.” The attorney said, “there are women there who are eligible to be placed on CARES Act home confinement, but they are languishing there as the pandemic’s Omicron variant rips through the facility.”

plaguebop211230Monday, USP Allenwood was number one with 143 sick inmates. As of yesterday, MCC Chicago had taken the lead with 132 sick inmates as Allenwood experienced the miraculous recovery of 29 inmates. (I have written before about the BOP’s questionable “recovered” declarations. In fact, 56% of all BOP inmate COVID deaths in the last nine months have been of “recovered” inmates).

The Marshall Project reported last week that “as with previous iterations of the virus, ‘everything about prisons and jails makes them a setup to magnify the harms of omicron. ‘The overcrowding. The poor sanitary conditions. The lack of access to health care,’ said Monik Jimenez, an epidemiologist at Harvard’s School of Public Health. ‘Masking is only going to do so much when you have people on top of you’.”

A federal prisoner in Florida told TMP that “They’re not telling us anything about omicron or anything else for that matter.”

quackdoc210707The Nation reported that “Under the weight of ongoing Covid-19 outbreaks and staff vaccine refusal, sickness, death, no-shows, and rapid turnover, jails and prisons have become increasingly deadly places for those who live and work inside their walls. Failures to protect those held in America’s roughly 5,150 jails and prisons have made these institutions into taxpayer-funded epidemic engines that have driven millions of preventable Covid-19 cases throughout US communities. In response, the consensus among national health and safety experts has been that large-scale decarceration is required to protect the public. For almost two years, lawmakers have largely ignored the appeals of health leaders, incarcerated people, prison staff, and community activists who know very well that, despite claims to the contrary, mass incarceration does not serve public safety.”

Johns Hopkins University, Coronavirus Resource Center (December 29, 2021)

Institute for Health Metrics and Evaluation, University of Washington, Anticipated COVID-19 Omicron infections in United States (December 22, 2021)

Forbes, The Women’s Federal Prison Camp At Alderson In Middle Of COVID-19 Outbreak (December 24, 2021)

The Marshall Project, Omicron Has Arrived. Many Prisons and Jails Are Not Ready. (December 22, 2021)

The Nation, As Covid Surges Again, Decarceration Is More Necessary Than Ever (December 22, 2021)

– Thomas L. Root

Rudolph Never Had It This Bad… – Update for December 27, 2021

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

A LUMP OF COAL FOR CENTRAL OFFICE

The other reindeer used to laugh and call Rudolph names… but not in publications circulating on Capitol Hill.

rudolph211227First, Forbes ran a piece a week ago on BOP employee misconduct. Forbes noted that employees are rarely filed, with the BOP “preferring to offer them retirement or reassignment. The article pointed out that then-Attorney General William Barr told a Fraternal Order of Police conference after Jeffrey Epstein’s death that “we are now learning of serious irregularities” at MCC New York, where Epstein was found dead …” and “[we] will get to the bottom of what happened and that there will be accountability.”  

In the end, Forbes said, “two corrections officers were indicted (later entered into a deferred prosecution agreement) while nobody in executive management was charged.” Warden Lamine N’Diaye, who was in charge of notorious MCC New York at the time, was never accused of wrongdoing. He was promoted to be warden at FCI Fort Dix, a considerably larger institution. Edsel Ford, Robert S. McNamara. Lamine N’Diaye… upward failures all.

Retirement is another way the BOP rids itself of an embarrassing employee. There is less press, and the agency can force responsibility on the taxpayers to pay a lifetime pension in exchange for hiding an indiscretion from the public. Plus, retirement derails most investigations by the DOJ Inspector General, because an agency generally cannot take disciplinary action against a retired employee.

badapple211227Once in a while, however, the employee goes to the mat before the Federal Mediation & Conciliation Service, and the public gets a view of bad behavior inside the agency. Forbes reported on a Dec 9 FMCS order upholding the firing of an FCI Miami employee who paid inmates with food for performing his job, including using a staff computer to write emails, place online orders for supplies, search the BOP’s workers’ compensation data, take telephone calls for [the staff member], prepare Equal Employment Opportunity complaints and write correspondence to FCI Miami’s warden regarding a negative performance review” the staff member had gotten.

Meanwhile, the Atlanta Journal-Constitution reported details from a recently unsealed indictment against a BOP employee accused of conspiring with two inmates to smuggle drugs into USP Atlanta.

None of this is helpful to BOP Director Michael Carvajal, whose firing was demanded a month ago by Sen Richard Durbin (D-Illinois) after news broke about BOP employees committing serious crimes. Last week, a former BOP Director threw gasoline on the dumpster fire in a piece published in The Hill. Perhaps, to pile on the metaphors, I should say the article  threw Carvajal a lifeline… with an anvil tied to the other end.

fault200814Former BOP Director Hugh Hurwitz said it’s not necessarily the director’s fault (but he did not suggest that Carvajal not be fired). Federal prisons “are in crisis, riddled with deep and systemic ills that won’t be cured by simply replacing the BOP chief,” Hurwitz wrote. “In fact, we’ve already tried that. Carvajal, appointed last year, became the sixth director or acting director in just five years.”

Hurwitz called for sentencing reform, including “mandating a greater reliance on drug courts, community service and other alternatives to prison, such as halfway houses. It also means eliminating mandatory minimum penalties for drug crimes…”

As for the BOP itself, Hurwitz urged the Attorney General to adopt a “recommendation from the Council on Criminal Justice’s Task Force on Federal Priorities, which called for creation of an independent oversight board for the BOP. This would bring outside expertise to bear on the agency’s multiple challenges while retaining the career leadership that historically has served the agency well.”

Hurwitz called for rebuilding the federal criminal justice system “so that it is smaller, less punitive, more humane and safer for all. With political will, independent oversight and an unwavering commitment, we can make holistic change to a system long in need of it.”

The drumbeats continue and the bad press rolls on. Can the Director hold on?

Forbes, FCI Miami Federal Prison Employee Fired For Using Inmates To Help Perform His Job (December 21, 2021)

Federal Times, A BOP supervisor abused their position then quit. What happens next? (January 6, 2020)

Atlanta Journal-Constitution, Prison officer indicted in smuggling scheme never met co-defendants, lawyer says (December 22, 2021)

The Hill, To fix our prison system, we need far more than a change in leadership (December 22, 2021)

– Thomas L. Root

It’s Getting Ugly Out There – Update for December 20, 2021

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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.

IT WAS THE WORST OF TIMES… OR IT’S GOING TO BE

In its never-ending game of COVID whack-a-mole, the Federal Bureau of Prisons continues to tamp down outbreaks in one facility only to have the virus spike in another. Last week, inmate cases climbed 8% over the week before to 286, and staff numbers increased slightly from 237 to 242. Significantly, COVID is now present in 88% of BOP facilities, up six from last week’s 101-prison count.

christmasskull211220The BOP reported two more inmate deaths, one at Butner and another at FMC Fort Worth. Both were of people who had previously recovered from COVID, meaning that since March 2021, 56% of all inmate COVID deaths were people who had caught the virus once before but suffered lighter symptoms. So much for the trope that recovering from a previous bout of COVID protects a person from reinfection…

Alderson, USP Allenwood, Waseca, FCI Pollock, and Coleman Medium all reported ten or more inmate cases as of last Friday. Carswell and Rochester reported more than ten staff cases.

The BOP’s problem is COVID-19 delta. And now, here comes the COVID-19 omicron variant to disrupt the BOP even more.

Omicron is spreading so quickly that almost anything I write will be outdated by the time you read it. As of last Friday, New York State broke its previous record for new daily cases, set 11 months ago. “This is changing so quickly. The numbers are going up exponentially by day,” New York Governor Kathy Hochul said Friday. Yesterday, outgoing National Institutes of Health Director Dr. Francis Collins told CNN, “If Americans don’t take COVID-19 seriously, the country could see 1 million daily infections.”

Nationally, the number of confirmed omicron cases increased 97% from Friday to Saturday. Omicron is now spreading in 44 states. The US is currently averaging 121,707 new Covid-19 cases each day with 1,286 deaths each day. Michael Osterholm, director of the Center for Infectious Disease Research and Policy at the University of Minnesota, told CNN last Thursday, “I think we’re really just about to experience a viral blizzard. I think in the next three to eight weeks, we’re going to see millions of Americans are going to be infected with this virus, and that will be overlaid on top of Delta, and we’re not yet sure exactly how that’s going to work out.”

plague200406Yesterday, outgoing National Institutes of Health Director Dr. Francis Collins told CNN, “If Americans don’t take COVID-19 seriously, the country could see 1 million daily infections.”

Take it seriously? While 92% plus of federal workers have heeded the President’s order to get vaccinated, as of last Friday, only 68% of the BOP staff have done so. And how do you think the virus gets into otherwise locked-down facilities? The BOP – where every change of watch is a superspreader event.

There’s more bad news. An Oxford University study released last week found that two doses of the Pfizer vaccine are much less effective at warding off COVID omicron than previous variants of the coronavirus, especially beyond 28 days after the second dose. of either vaccine. When omicron was introduced to those samples, scientists reported “a substantial fall” in the neutralizing antibodies that fight off COVID compared to the immune responses seen against earlier variants. The research paper noted that some vaccine recipients “failed to neutralize [the virus] at all.”

omicron211220

The Johnson & Johnson “vaccine produced virtually no antibody protection against omicron, “underlining the new strain’s ability to get around one pillar of the body’s defenses,” according to one of the researchers. A Dec 16 Imperial College of London study found that the risk of reinfection with the Omicron coronavirus variant is more than five times higher, with no sign of being milder than prior COVID variants.

If that’s not enough, last Thursday, the Centers for Disease Control and Prevention recommended adults take the Pfizer or Moderna COVID-19 vaccine over the Johnson & Johnson one-shot vaccine after agency officials reported the rate of a severe but rare blood-clotting condition was higher than previously detected.

Expect more lockdowns, restrictions, and inmate deaths.

NPR, U.S. could see 1 million cases per day, warns departing NIH director Francis Collins (December 19, 2021)

NBC, ‘This Is a Whole New Animal:’ NY Reports Highest Single-Day Case Total of Pandemic (December 17, 2021)

CNN, The latest on the coronavirus pandemic and the Omicron variant (December 17, 2021)

Wanwisa Dejnirattisai, et al., Reduced neutralisation of SARS-COV-2 Omicron-B.1.1.529 variant by post-immunisation serum (Oxford University, December 13, 2021)

Bloomberg Quint, J&J Shot Loses Antibody Protection Against Omicron in Study (December 14, 2021)

Neil Ferguson, et al., Growth, population distribution and immune escape of Omicron in England (Imperial College – London, December 16, 2021)

Wall Street Journal, CDC Recommends Pfizer, Moderna Covid-19 Vaccines Over J&J’s (December 16, 2021)

– Thomas L. Root

COVID – We Ain’t Seen Nuthin’ Yet? – Update for December 15, 2021

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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.

LADIES LEAD THE WAY IN COVID NUMBERS JUMP

Bureau of Prisons inmate COVID numbers have jumped 65% in the last two weeks to 243, fueled by a spike at FCI Waseca, where 125 female inmates were sick last Friday. That number has dropped by half as of yesterday, due in no small part to the BOP’s habit of declaring any inmate to be recovered after t days, no matter her condition as long as she has no fever.

COVIDheart200720The BOP’s technique, a bastardization of what the Centers for Disease Control and Prevention recommends, no doubt accounts for the fact that 56% of all inmate COVID deaths in the last nine months have been of prisoners who had been declared “recovered” at some point in the past 20 months by the agency. Some inmates have reported that they were declared “recovered” ten days after COVID was diagnosed after nothing more than a quick temperature check. Others have reported that temps weren’t even taken: after ten days (provided you were not dead), you were considered to be “recovered” and sent on your way.

Case in point: an inmate whose death was reported today had COVID last February. “On Tuesday, February 16, 2021, in accordance with Centers for Disease Control and Prevention (CDC) guidelines, [he] was converted to a status of recovered, following the completion of medical isolation and presenting with no symptoms,” the BOP recounted in what has become its Newspeak for such situations.

Staff cases are stubbornly holding, at 229, within a rounding error of two weeks ago (232). The number of BOP facilities affected by COVID stands at 102, about the same as two weeks ago.

plague200406The BOP has logged four more inmate COVID deaths in the past two weeks. One of them was a Terminal Island inmate whose death last May 10 was only now attributed to COVID. Like more than 60% of inmates dying since March 2021, the inmate had recovered from COVID once before contracting it again and dying of it the second time around.

Nearly 93% of the federal workforce has now received at least one COVID-19 vaccine dose. Avernment Executive magazine, more than 97% is in compliance with President Biden’s mandate by either getting a shot or requesting an exemption. But BOP compliance is lagging significantly: As of last Friday, only 68% of BOP employees and 72.3% of inmates have been vaccinated. With the Biden Administration admitting no one will be fired for not getting the jab, new employee vaccinations have slowed to a crawl.

The real COVID news in the last few weeks is not the delta variant, which is still responsible for current inmate cases. Instead, delta may be a tortoise next to the COVID-19 omicron variant. That variant – identified in South Africa for the first time on November 24, 2021 – has been found in 25 U.S. states in just 16 days. Officials of the UK and other European countries have predicted that omicron will become the dominant strain of COVID in their countries “within days, not weeks.” Cases in Europe are doubling “every two to three days.”

omicron211215Vaccines appear not to provide heightened resistance to omicron. An Oxford University study has found that two doses of Oxford-AstraZeneca or Pfizer-BioNTech Covid-19 vaccines are substantially less effective at warding off omicron than previous coronavirus variants. The study tested blood samples of people 28 days after their second dose of either vaccine. When omicron was introduced to those samples, scientists reported “a substantial fall” in the neutralizing antibodies that fight off COVID compared to the immune responses seen against earlier variants. The research paper noted that some vaccine recipients “failed to neutralize [the virus] at all.”

The same is true for the J&J single-dose vax. Johnson & Johnson’s vaccine produced virtually no antibody protection against the omicron coronavirus variant in a laboratory experiment, underlining the new strain’s ability to get around one pillar of the body’s defenses.

While there has been some speculation that omicron may not generally cause symptoms as severe as those caused by alpha and delta variants, no studies have yet confirmed that. In fact, Dr. Paul Burton, chief medical officer for Moderna, predicted yesterday there is a very real risk of getting a “dual infection” from both omicron and delta. He said: “In the near future these two viruses are going to coexist.”

deadcovid210914The UK logged its first omicron death on December 13, only two weeks after the nation recorded its first omicron case. Boris Johnson, the UK Prime Minister, warned that “the idea that this is somehow a milder version of the virus, I think that’s something we need to set on one side and just recognize the sheer pace at which it accelerates through the population.”

The silver lining to the coming 4th wave is this: with a COVID pill about 100 days away, this may be the last chance for prisoners to convince a court to grant a compassionate release based on COVID.

Mankato Free Press, Waseca prison has biggest COVID-19 outbreak in country (December 9, 2021)

BOP, Inmate Death at FCI Terminal Island (December 6, 2021)

BOP, Inmate Death at FCI Butner II (Medium) (December 14, 2021)

Government Executive, An inside look at the White House’s approach to implementing Biden’s mandate (December 10, 2021)

New York Times, South Africa detects a new variant, prompting new international travel restrictions (November 25, 2021)

CNBC, Omicron detected in Florida and Texas as it takes root in 25 U.S. states (December 10, 2021)

Washington Post, Omicron could soon become dominant in some European countries, officials predict (December 10, 2021)

Oxford University, Reduced neutralisation of SARS-COV-2 Omicron-B.1.1.529 variant by post-immunisation serum (December 13, 2021)

– Thomas L. Root

BOP COVID Number Climb Again – Update for December 9, 2021

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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’S BACK… REALLY, IT NEVER LEFT

coviddelta210730Not quite 6 months ago, the CDC director predicted that COVID-19 Delta – which had just been identified – was likely to become the dominant strain in the US. As of two weeks ago, Delta accounts for 99% of COVID worldwide.

Now, the first cases of COVID Omicron have made US landfall. The New York Times reported last Friday that new research indicates that the Omicron “variant can spread more easily than Delta, which was previously the fastest-moving version of the virus.” Omicron’s rapid spread results from a combination of contagiousness and an ability to dodge the body’s immune defenses, the researchers said. South African scientists reported on Thursday that having had COVID-19 previously appears “to offer little to no protection against the Omicron variant.”

Even without Omicron, the BOP is experiencing a post-Thanksgiving COVID surge. Yesterday, 254 inmates systemwide had COVID, up 49% from a week before, primarily due to 132 new cases at FCI Waseca. Staff cases fell from 231 to 220, and the number of affected prisons held at 99. The BOP has logged four more COVID deaths, three of whom have been identified, at FCI Hazelton, FCI Seagoville, and FCI Terminal Island. One of the announced deaths is of someone who had had COVID-19 before but had recovered.

deadcovid210914BOP vaccinations slowed last week. Vaccinated staff numbers rose about 8/10ths of a point to 67.35%. Inmate vaccinations ended the week up 6/10ths of a point to 71.55%.

A UK study last week reported that in late autumn 2020 in the U.K., COVID-19 became more lethal—meaning that the probability that an infected person would die from the disease increased. Scientists are trying to determine the reason for the deadlier results. And yesterday, Dr. Rochelle Walensky, director of the CDC, told the Associated Press that of the 40-plus people known to be infected by omicron so far in the United States, more than 75% were vaccinated, and one third had received a booster shot. She said that almost all the cases resulted in mild illness, with only one case requiring hospitalization.

Wall Street Journal, Delta Covid-19 Variant Likely to Become Dominant in U.S., CDC Director Says (June 18, 2021)

SciTechDaily, New Statistical Analysis Shows COVID-19 Became Much More Lethal in Late 2020 (December 1, 2021)

CNBC, WHO says delta variant accounts for 99% of Covid cases around the world (November 16, 2021)

USA Today, Delta drives surge in US cases before omicron gains foothold; 75% of US infections by new variant among vaccinated: Latest COVID-19 updates (December 10, 2021)

– Thomas L. Root

Durbin Doubles Down on Dumping Director – Update for December 7, 2021

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DURBIN AGAIN CALLS FOR BOP DIRECTOR’S FIRING

fired171218Arguing that Bureau of Prisons Director Michael Carvajal “has shown no intention of reforming the institution,” Senator Richard Durbin (D-Illinois) repeated his call that demanded his firing in a speech last Thursday on the floor of the Senate.

Durbin, the second-ranking member of the Senate (and chairman of the Senate Judiciary Committee), cited a recent Associated Press investigation that revealed over 100 BOP officers and employees had been criminally charged in the past two years – a rate more than double the Dept of Justice average – for crimes ranging from smuggling contraband into facilities to sexual abuse of prisoners. “For years,” Durbin said, “the Bureau of Prisons has been plagued by corruption, chronic understaffing, and misconduct by high-ranking officials.” He also cited the 2019 suicide of sex criminal Jeffrey Epstein at MCC New York, which closed earlier this year.

AP reported last Thursday that “under Carvajal’s leadership, the agency has experienced a multitude of crises, from the rampant spread of coronavirus inside prisons and a failed response to the pandemic to dozens of escapes, deaths and critically low staffing levels that have hampered responses to emergencies.”

DruckDurbin, whose Judiciary Committee exercises oversight of the BOP, first called for Carvajal’s firing on November 16, after the release of the AP’s investigation. The AP found what it called “rampant criminal activity” by BOP employees and alleged the “agency has turned a blind eye to employees accused of misconduct.”

In his speech, Durbin cited the BOP’s appointment of Lamine N’Diaye as warden at FCI Fort Dix. N’Diaye was warden at MCC New York when celebrity child molester Jeffrey Epstein died, allegedly as a suicide. The AP reported that the BOP previously tried to place N’Diaye in the Fort Dix job, “but the move was stopped by then-Attorney General William Barr after the AP reported the transfer.” In January 2020, the BOP said it would defer the N’Diaye’s transfer to the FCI Fort Dix position until the Epstein investigation was completed but later made the switch anyway.”

“In the nearly two years since Director Carvajal took control of the Bureau, he has failed to address the mounting crises in our nation’s federal prison system,” Durbin said Thursday. “It is far past time for new, reform-minded leadership in the Bureau of Prisons.”

Trump Administration Attorney General William Barr appointed Carvajal. However, current Deputy Attorney General Lisa Monaco said recently that she still had confidence in his leadership.

The AP reported last June that the Biden administration was considering replacing Carvajal, one of the few remaining Trump administration holdovers at DOJ.

bureaucracy180122Many think it’s time to do so. BOP is “an agency that is largely unaccountable to the public,” the “people that it purports to protect” and even its staff, Amy Fettig, executive director of the Sentencing Project told the Washington Post last week. “We should never have a government agency that operates with so little public accountability,” Fettig said about the BOP. When we do, she said, “bad things happen.”

As if to put an exclamation point to that, the US Attorney for Northern California announced last Friday that John Bellhouse has been charged with several counts of sexual abuse of a woman prisoner at FCI Dublin.

Business Insider, Top Democrat calls on Biden administration to fire the Trump-era head of federal prisons, citing inmate abuse and the death of Jeffrey Epstein (December 2, 2021)

AP, Durbin: Prisons chief has ‘no intention of reforming’ system (December 2, 2021)

AP, AP Exclusive: Feds backtrack on transfer of Epstein warden (January 28, 2020)

Washington Post, Lawbreakers in federal prisons include prison staff, report finds; senators demand accountability (December 1, 2021)

Press Release, US Attorney for Northern California, Federal Correctional Officer Charged With Sexual Abuse of an Inmate (December 3, 2021)

– Thomas L. Root

Omicron! More COVID in BOP’s Future? – Update for November 30, 2021

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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.

SOMETHING NEW ABOUT COVID – AND IT’S NOT GOOD

Last week, I suggested COVID might not be over, but may just be in a “lull.” Sadly (and unusual for me, according to my wife), I may be right.

coviddelta210827

First, how’re things in the Bureau of Prisons? After hitting a low of 95 inmates and 258 staff with COVID on November 19, the BOP numbers started climbing again. As of last night, inmate cases had increased by 41% since then, and staff cases remained at 258. Facilities reporting COVID jumped from 92 to 102 in a week (constituting 83% of all BOP installations) reported inmate or staff COVID.

The White House said last week that 92% of federal employees got the vaccine by President Biden’s November 22 deadline. But the BOP reported as of last Friday that only 66.5% of its estimated 37,000 employees had been jabbed. That number still trails the 70.9% of inmates who have been vaccinated, and is way off the government average. BOP staffers, however, can remain pretty confident – given the agency’s serious staffing shortage – that no one’s going to be fired for refusing a dangerous and untested vaccine that only a handful of Americans, say 225 million or so, have received without serious adverse effects.

(Americans like me: I’ve had three doses of Pfizer, and the only side effect I have suffered is weight gain… or maybe that’s from doughnuts).

A Times of India story last week reported that the FCI Texarkana study done by the Centers for Disease Control last August confirmed that “there is no statistically significant difference in the transmission of coronavirus between fully vaccinated and non-vaccinated.” That is, being around fully vaccinated people does not protect an unvaccinated person from contracting the virus.

Bloomberg reported yesterday that the predicted winter surge may have already begun. The city’s positive test rate rose to a two-month high as hospitals admitted more than 100 new virus patients last Friday, contributing to a 25% jump in hospitalizations in just two weeks.

xi211130News broke last Thursday of a new, potentially fearsome COVID threat, variant B.1.1.529. The variant is called “Omicron,” which was not the next letter in the Greek alphabet but was the next letter in the Greek alphabet beyond “xi,” a letter that sounded a lot like the leader of a large country in which COVID may have first escaped from a lab. Maybe.

At any rate, COVID Omicron is already spreading, the Biden administration was told. And, before long, evidence emerged that the variant carried worrisome mutations. When it first appeared on a global database of coronavirus genomic sequences, scientists were surprised. “This was the weirdest creature they’d seen to date,” The Washington Post reported. It had an unruly swarm of mutations. Many were known to be problematic, impeding the ability of antibodies to neutralize the virus. But there had never been a variant with so many of these mutations gathered in a package.”

“We have seen these mutations in other strains, in twos and threes, and each time they were a little harder to neutralize, but didn’t spread particularly well. Now, all together? It’s a complete black box,” Benjamin Neuman, a virologist at Texas A&M University, said in an email to the Post.

COVIDvaccine201221On Saturday, COVID-19 cases caused by the Omicron variant were confirmed or suspected in a widening circle of nations, including Britain and Germany. The pharmaceutical companies whose vaccines had appeared to chart a path out of the pandemic are expediting development of new formulations targeting the variant.

For now, despite the courts and government arguing that COVID is over, it seems that more ugly may be on the way.

Washington Post, More than 9 in 10 federal workers and military personnel are vaccinated, with only a small percentage seeking exemptions, White House says (November 24, 2021)

Bloomberg, New York City May Be at Start of Winter Surge of Covid-19 (November 28, 2021)

Times of India, Scientists have figured out how vaccinated people spread COVID-19 (November 26, 2021)

Washington Post, ‘You’ve got to prepare for the worst’: World responds to new variant’s arrival (November 27, 2021)

Washington Post, Omicron mutations alarm scientists, but new variant first must prove it can outcompete delta (November 29, 2021)

– Thomas L. Root

The COVID Calm and BOP Staff Vax Noncompliance – Update for November 24, 2021

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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.

JUST A COVID LULL?

deadcovid210914The BOP’s official inmate COVID numbers continued to fall last week, ending Friday at 95 ill inmates, a 34% decrease from the week before. Ominously, however, staff cases increased by 4% to 263. COVID remains in 92 facilities, down only two from a week before.

But in the last few days, things have turned around (and not in a good way). As of last night, 107 inmates were ill, 258 staff were sick, and COVID was present in 100 facilities (82% of all BOP prisons).

The BOP reported one additional inmate death last week, but it was from last July (and apparently escaped the Bureau’s notice). Ruben Castillo, who had had COVID before he arrived at the BOP, died of what the Bureau said were “post-COVID cardiac complications.” Yet the courts and government continue to argue that inmates who have had COVID don’t face any continuing risks.

As of last Friday, 70.2% of inmates were vaccinated. But with the November 22 deadline for BOP staff vaccinations now having passed, only 65.7% have gotten the shot, according to BOP statistics, up just 1.3 points from last week. This compares to a systemwide vax rate of 90% for federal workers.

So those noncompliant BOP staffers will be fired now, right?

noodle211124Well, that was the story once. But now, the punishment has gone from 40 lashes with a cat-o’nine-tails to 30 lashes with a soggy spaghetti noodle. NBC reports that “for those who haven’t met the requirement or requested a medical or religious exemption, the federal government will continue an “education and counseling process, followed by additional enforcement steps over time if needed’,” quoting a White House official.

White House press secretary Jen Psaki said the administration doesn’t “anticipate facing any governmental operational disruptions due to [the vaccine] requirement and in fact, the requirement will avoid disruptions, in our view, in our labor force because vaccinations help avoid COVID.”

The U.S. reported a seven-day average of nearly 95,000 new COVID infections last Thursday, up 31% over the past two weeks. “I’ve been predicting a pretty bad winter wave again, and it looks like it’s starting to happen,” Peter Hotez, the dean of the National School of Tropical Medicine at Baylor College of Medicine, said last week. “There’s just too many unvaccinated and too many partially vaccinated [people].”

COVIDvaccine201221That “too many” number apparently includes inmates, too. Although a much larger percentage of federal inmates have been jabbed than staff,  a former prisoner-turned-writer for Biz News last week argued that opposition by prison staffs to “vaccine mandates highlights an illogical situation that has developed with little discussion: To date, neither the federal government nor any state or municipality has officially mandated the jab for their incarcerated populations. That doesn’t make sense: Prisoners, who are at higher risk for infection and death than corrections officers, aren’t required to get vaccinated while corrections officers, who are at lower risk, are being told they must get vaccinated.”

Expect more of those arguments. In New York City, where the mayor has ordered all city corrections staff to be vaccinated, union chief Benny Boscio complained last week that “it is extremely hypocritical to mandate our officers be vaccinated, while there is no mandate for the inmates in our custody…”

Except where the mandate neither has teeth nor much effect.

BOP, Inmate Death at FCI Stafford (November 17, 2021)

CNBC, Covid cases rise yet again in U.S. ahead of Thanksgiving holiday (November 19, 2021)

The Hill, Experts predict an alarming surge of US COVID-19 cases this winter (November 18, 2021)

NBC News, Administration expects 95% compliance with federal worker vaccine mandate (November 23, 2021)

Washington Post, Federal workers can be fired for refusing vaccination, but must show up to work until their cases are determined, new guidance says (September 17, 2021)

Stat News, Vaccine mandates should cover the incarcerated, too, not just prison guards and workers (November 18, 2021)

Corrections1, NYC correction officers refusing to get COVID shots despite looming mandate (November 17, 2021)

– Thomas L. Root

Durbin to Carvajal: ‘Drop Dead’ – Update for November 18, 2021

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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, ALREADY A ‘HOTBED OF ABUSE’, DITHERS WHILE INMATES SUFFER, INSPECTOR GENERAL SAYS

Turkeys may not be the only creatures with heads on the chopping block.

dropdead211118US Senate Majority Whip Dick Durbin (D-Illinois), chairman of the Senate Judiciary Committee, last Tuesday publicly demanded that Attorney General Merrick Garland fire Federal Bureau of Prisons Director Michael Carvajal, who was appointed during the Trump Administration.

Durbin’s call came after the Associated Press reported that since the beginning of 2019, over 100 federal prison workers have been arrested, convicted or sentenced for crimes, including the warden of FCI Dublin – a women’s prison in central California – indicted for sexual abuse, an associate warden at MDC Brooklyn charged with killing her husband last August, guards taking cash to smuggle drugs and weapons, and supervisors stealing property such as tires and tractors.

The Associated Press said its investigation revealed that the BOP “is a hotbed of abuse, graft and corruption, and has turned a blind eye to employees accused of misconduct. In some cases, the agency has failed to suspend officers who themselves had been arrested for crimes.” While the BOP workforce amounts to one-third of Dept of Justice personnel, its employees account for two-thirds of the criminal cases against DOJ workers in recent years. Of 41 DOJ employee arrests this year, 28 were of BOP employees or contractors.

The AP report was too much for Durbin, who said,

Director Carvajal… has overseen a series of mounting crises, including failing to protect BOP staff and inmates from the COVID-19 pandemic,failing to address chronic understaffing, failing to implement the landmark First Step Act, and more. It is past time for Attorney General Garland to replace Director Carvajal with a reform-minded Director who is not a product of the BOP bureaucracy.

choppingblock211118On Wednesday, the DOJ Inspector General put an exclamation point on Durbin’s well-justified rant. An IG report found that three years after passage of the First Step Act, the BOP has yet to implement one of the linchpins of the legislation, to reduce recidivism by giving prisoners incentives to successfully certain educational programs and productive activities. The primary holdup? BOP management and union staff have been unable to come up with ground rules for meetings to discuss how the educational and incentives programs should be implemented.

Remember how the 1968 Paris Peace Talks were stalled for months over whether the table over which “official conversations” would be held should be round or rectangular? Yeah, this has been something like that. BOP’s national union won’t conduct formal policy negotiations on Zoom, but rather demanded in-person negotiations. BOP management refused. The disagreement has resulted in a lack of formal policy negotiations for a period of 20 months, which has stalled the development of more than 30 BOP policies, about half of which were created or revised because of First Step.

The First Step Act requires the BOP to provide Evidence-Based Recidivism Reduction (EBRR) programs and productive activities to all inmates in its custody no later than January 15, 2022. The BOP has taken the position that this means that no credits need be awarded until then. No one believes that. In litigation, even the United States Attorney’s Offices defending the BOP have abandoned that tortured interpretation of the Act. The IG’s report said:

In August 2021, the BOP told us that the [First Step Act] contemplates a phased-in approach to time credit implementation and requires that all inmates be assigned to programming based on their assessments no later than January 15, 2022. As a result, the BOP stated that “implementation of time credits is fully permissible as a phased approach.” While we agree that the FSA affords the BOP a 2-year phase-in period to provide all inmates with EBRR programs and productive activities, we also note that the phase-in statute makes no reference to delaying the use of incentives and rewards, including time credits. Instead, the statute states that by January 15, 2020, the BOP “may offer to prisoners who successfully participate in such programs and activities [with] incentives and rewards.”

As a result of the BOP’s failure to talk to its union, as many as 60,000 inmates have not properly received earned-time credits for successful completion of First Step Act’s recidivism programs, the Department of Justice inspector general found. “We are concerned that the delay in applying earned time credits may negatively affect inmates who have earned a reduction in their sentence or an earlier placement in the community,” the report stated.

unsupervised211118Inmates around the country have filed petitions for habeas corpus against the BOP, demanding credit, with mixed results. Even now, the BOP stands firm. The courts are wrong. The US Attorneys are wrong. And, the latest, the Inspector General is wrong:

BOP disagrees with OIG’s characterization of the agency’s delayed implementation of FSA requirements… Although the COVID- 19 pandemic has created unprecedented challenges for the federal government, BOP has taken significant steps in implementing the FSA’s requirements, consistent with the FSA’s phased approach, and has complied with all mandatory statutory guidelines to-date.

Happy Thanksgiving, Director Carvajal. Use some of the long weekend to dust off your resume.

Press release, Durbin Calls On AG Garland To Dismiss BOP Director Carvajal (November 16)

Associated Press, Workers at federal prisons are committing some of the crimes (November 14, 2021)

Associated Press, Durbin calls for Garland to remove federal prisons director (November 17, 2021)

Forbes, Office of Inspector General Critical of Federal Prison Implementation of First Step Act (November 17, 2021)

ABC, DOJ finds Bureau of Prisons failed to apply earned time credits to 60,000 inmates (November 17, 2021)

Dept of Justice, Office of Inspector General, Management Advisory Memorandum 22-007 (November 16, 2021)

– Thomas L. Root