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Reports Call Results of Bureau of Prisons’ COVID-19 Management “Tragic” – Update for April 20, 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 CURVE NOT FLATTENING IN BOP

The Federal Bureau of Prisons is now in “Phase 6” of its plan to curb the spread of COVID-19 among its 172,000 inmates housed in 122 institutions. Phase 6 (the BOP prefers the Roman-numeraled “Phase VI” for reasons as obscure as the NFL’s use of such numerals for Super Bowls) looks an awful lot like Phase V… it just lasts longer. This Phase (and the lockdowns) will last until May 18, 2020.

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Forbes magazine, BOP COVID-19 cases as of April 15, 2020

As Forbes magazine put it last Wednesday, “BOP’s efforts thus far have included halting social and legal visits since the middle of March, screening of inmates, staff and contractors by taking their temperature to measure infection, mobilizing administrative staff to step into front line positions, increase rate of hiring new corrections officers and halting staff training. The results have been tragic.”

As of Sunday night, there are 495 inmates (up 41% from last week) and 305 staff (up 61% from last week) ill with COVID-19 in 45 institutions (more than one-third of all BOP facilities). At least 22 inmates have died, the latest at FCI Terminal Island yesterday. Business Insider reported on Saturday that a BOP case manager from USP Atlanta died last week in her home of COVID-19.

The federal government’s COVID-19 strategy has been to “flatten the curve,” to spread out the spike in coronavirus cases so as not to overwhelm hospital capacity and resources. But, as Forbes notes, no

epidemiologists modeling the crisis ever envisioned the systemic failure that would expose 177,000 inmates housed in multiple institutional clusters, some numbering over 5,000 inmates, to a COVID-19 outbreak. These failures are resulting from a lack of a widespread testing protocol at institutions, the continued transfer of inmates between institutions, the introduction of new inmates who are either arrested or self-surrender and the thousands of staff and contractors that go in and out of these institutions.

The problem that has led to the continuing skyrocketing BOP COVID-19 cases is simple: the BOP has been unable or unwilling to test any inmates “except those who have died or are willing to risk fellow inmate retribution by revealing themselves to be symptomatic. Forbes reports that “more inmates are sick than the BOP is reporting and more inmates are not reporting that they are sick out of fear of being identified as sick.”

covidtest200420This is probably so. As of Sunday night, for example, FCI Elkton reported 50 inmates sick with COVID-19. But last Friday, the BOP admitted in federal court that Elkton has 207 suspected inmate COVID-19 cases, but only had ever received 80 test kits. It has used 37, leaving only 43 on hand. It expects to receive an additional 25 kits a week for the next several weeks. “We have very, very limited amounts of the testing kits,” Brandy Moore, secretary treasurer of the national union that represents correctional officers in federal prisons, was quoted as saying by Mother Jones magazine last week.

At FCC Terre Haute, Indiana, “we have between 2,500 and 3,000 inmates, and we were given four tests,” Steve Markle, another leader of the national union who works at the prison, told Mother Jones in late March. At FCI Oakdale, correctional officers were told to stop testing people and just assume that anyone with symptoms had been infected, according to Ronald Morris, president of the local union there — even though, as shown by the Arkansas state prison experience we cited last Wednesday, plenty of people can be asymptomatic.

statistics170104All of this, Mother Jones reported, “is to say that statistics reported by the Federal Bureau of Prisons are likely massive undercounts. “Our numbers are not going to be adequate because we’re not truly testing them,” Moore said.

Meanwhile, in a filing in the Eastern District of New York on April 9, the BOP admitted that “‘because of the shortage of tests, testing is currently reserved for those meeting’ certain criteria, including the kind of symptoms the inmate is facing, his potential exposure, whether he is high risk and whether he works in a high-contact role such as food service.” Through Thursday, April 16, the number of inmates tested at MCC New York and MDC Brooklyn has risen from 11 to 19. That is out of a combined population of over 2,300 inmates.

The ACLU has filed lawsuits in Louisiana against FCI Oakdale, Massachusetts against FMC Devens, and Ohio against FCI Elkton, seeking to compel release of more inmates because of the virus. “”Devens — one of only seven federal prison medical centers — is a powder keg of potential infection and death from COVID-19, to an even greater degree than nursing homes, cruise ships, and other prisons, sites of some of the most intense clusters of mortality in donegood200420Massachusetts, the United States, and elsewhere in the world,” the plaintiffs’ lawyers wrote in the District of Massachusetts complaint.

“We’re dealing with it just as well as anybody else,” BOP Director Michael Carvajal told CNN a week ago, “and I’d be proud to say we’re doing pretty good.”

Forbes, Federal Bureau of Prisons Institutions Not Showing Any Signs of “Flattening Curve” (Apr 15)

Business Insider, The Federal Bureau of Prisons has confirmed the first staff death linked to the coronavirus, report says (Apr 18)

Wilson v. Williams, Case No. 4:20cv794 (N.D.Ohio), Supplement to Respondents’ Answer, Dkt. 19, filed Apr 18, 2020

New York Law Journal, Brooklyn Federal Lockup Officials Describe ‘Shortage of Tests’ in Newly Filed Documents (Apr 15)

CNN, Exclusive: ‘I don’t think anybody was ready for this Covid,’ says head of federal prisons (Apr 10)

– Thomas L. Root

BOP Extends Quarantine As Questions About Its Competence Continue – Update for April 16, 2020

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

BOP SAYS IT’S “DOING PRETTY GOOD” ON COVID-19

Coronavirus has swept through the Federal Bureau of Prisons in the past three weeks, leaving over 725 confirmed cases among inmates, at least 16 prisoners dead, and, in the words of CNN, “raising concerns about the government’s handling of the crisis.” In response, the BOP has announced Phase VI of its COVID-19 response, which seems to consist primarily of another month of inmate lockdown.

attaboy200416

Inside some facilities, CNN reported last weekend, inmates have said they are locked in crammed and cramped cells without face masks and enough soap, and guards have grown concerned that they could be spreading the disease to their families. At a prison in Butner, North Carolina, the number of cases jumped by dozens – nearly 400% – earlier this week. At FCI Oakdale, Louisiana, where six inmates have died in recent days, corrections officers had to quell a small uprising with pepper spray on Wednesday, an official at the prison said.

Last weekend, BOP Director Michael Carvajal defended the steps the agency has taken to address the pandemic: “I don’t think anybody was ready for this COVID, so we’re dealing with it just as well as anybody else and I’d be proud to say we’re doing pretty good,”  Carvajal, who was named director in late February, told CNN.

Actually, the correct grammar would be “doing pretty well.” But mangled English is hardly the biggest problem with Mike’s auto-hagiographic assessment.

The Northwest Arkansas Democrat Gazette released emails yesterday in which Arkansas health officials discussed whether the BOP fully understood the “seriousness” of the coronavirus outbreak at the FCI Forrest City federal prison, and whether prison officials were fully cooperating with the mitigation effort. Although Director Mike spun the Centers for Disease Control inspection of FCI Forrest City as being the result of a BOP request for assistance, the released emails show that shortly after the first positive COVID-19 case at the FCI was disclosed on Friday, April 3rd, Dr. Naveen Patil, the Arkansas Department of Health director for infectious diseases, questioned the prison’s efforts and expressed a desire for CDC backup.

testing200413When an Arkansas state inmate came down with the virus, Mother Jones reported yesterday, prison officials immediately tested 48 other inmates in the unit, finding that 46 of them – almost all of whom had no symptoms – were infected. But the BOP’s COVID-19 planning has left the agency with no ability to test.  “We have very, very limited amounts of the testing kits,” Brandy Moore, secretary treasurer of the national union that represents correctional officers in federal prisons, was quoted as saying by Mother Jones.

At FCC Terre Haute, Indiana, “we have between 2,500 and 3,000 inmates, and we were given four tests,” Steve Markle, another leader of the national union who works at the prison, told Mother Jones in late March. At FCI Oakdale, correctional officers were told to stop testing people and just assume that anyone with symptoms had been infected, according to Ronald Morris, president of the local union there — even though, as shown by the Arkansas state prison experience, plenty of people can be asymptomatic.

All of this, Mother Jones reported, “is to say that statistics reported by the Federal Bureau of Prisons are likely massive undercounts. “Our numbers are not going to be adequate because we’re not truly testing them,”  Moore said.

Still, the BOP’s COVID-19 numbers – which the agency promised would be updated every day at 3 pm but which, each day, seems to be reported later and later – were updated after 6 pm last night to report COVID-19 had been confirmed in 449 inmates and 280 staff, spread across 43 BOP facilities. The number is undoubtedly much higher.

data200416Meanwhile, in a filing in the Eastern District of New York yesterday, the BOP admitted that “‘because of the shortage of tests, testing is currently reserved for those meeting’ certain criteria, including the kind of symptoms the inmate is facing, his potential exposure, whether he is high risk and whether he works in a high-contact role such as food service.” Through Tuesday, April 14, the number of inmates tested at MCC New York and MDC Brooklyn remained at 11 (the same number reported the prior Friday).

If you don’t test, you cannot confirm. If you cannot confirm, your data are meaningless.

Perhaps most sobering was a report in the Santa Barbara Independent that an inmate, Efrem Stutson, was released on April 1st and put on a Greyhound bus to San Bernardino by USP Lompoc officials while he had a hacking cough and was so ill “he could hardly hold his head up.” Efrem refused to go to the hospital that night, but the next morning his family insisted. Paramedics wearing protective equipment rushed him to Kaiser Permanente medical center in Fontana. Doctors diagnosed him with COVID-19 and put him in quarantine. No visitors were allowed. Four days later, Efrem died.

His sisters are heartbroken — and furious, the Independent reported. “Why did they release him so sick?” one asked. “They sent him home on his deathbed.”

death200330A USP Lompoc spokesman confirmed that Efrem was released on April 1st. But for “privacy, safety, and security reasons,” he said, he could not comment on Efrem’s medical condition at the time. “All inmates, prior to releasing from the BOP, will be screened by medical staff for COVID-19 symptoms,” he said. “If symptomatic for COVID-19, the institution will notify the local health authorities in the location where the inmate is releasing, and transportation that will minimize exposure will be used, and inmates will be supplied a mask to wear.”

Laura Harris-Gidd, Efrem’s sister, said he wasn’t wearing a mask when she picked him up at the bus station. “I just don’t understand why they would let him out instead of quarantining him and taking care of him,” she said. “I think they’re hiding a lot.”

“We’re dealing with it just as well as anybody else,” BOP Director Michael Carvajal said, “and I’d be proud to say we’re doing pretty good.” Right.

Hold you head up high, Mike.

CNN, Exclusive: ‘I don’t think anybody was ready for this Covid,’ says head of federal prisons (Apr 10)
Northwest Arkansas Democrat-Gazette, Emails detail talks on illnesses at federal prison (April 15)
Mother Jones, Want to Know How Fast Coronavirus Can Spread in Prison? Look at Arkansas (April 15)
New York Law Journal, Brooklyn Federal Lockup Officials Describe ‘Shortage of Tests’ in Newly Filed Documents (April 15)

– Thomas L. Root

COVID-19 Numbers Rise, BOP Scrambles – Update for April 13, 2020

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

THE WEEK IN COVID-19

corona200313A little over two weeks ago, Attorney General William Barr announced that “total of six inmates and four prison staffers have tested positive for COVID-19.” Last week, BOP admitted to 138 inmates and 59 staff sick (with eight fatalities). As of Sunday evening, April 12, the BOP’s updated numbers report 352 federal inmates and 189 federal prison staffers had tested positive.

Two more inmates have died. A 76-year old Oakdale prisoner, died of COVID-19 on Friday, and an 81-year old Butner I prisoner died on Saturday. The total now is ten.

The BOP is reporting that there are now 40 different federal facilities (and nine halfway houses) with positive COVID cases, up from 21 only a week ago.

At the same time, the BOP is moving to send the first wave of vulnerable inmates to home confinement under The CARES Act. A BOP release last week asserted that since Barr issued the March 26 memo “instructing us to prioritize home confinement as an appropriate response to the COVID-19 pandemic, the BOP has placed an additional 886 inmates on home confinement.”

There is substantial basis for taking the BOP’s numbers with a grain of salt. The agency’s COVID-19 resource page updates its numbers daily, but it notes that the numbers include only inmates and staff “who have confirmed positive test results for COVID-19.” The problem is that testing appears not be getting done, and you can count what you don’t test.

testing200413Ten days ago, the US District Court for the Eastern District of New York ordered the wardens at MCC New York and MDC Brooklyn to file twice-weekly reports with the court on the status of COVID-19 testing at the facilities. In a report filed last Friday, the wardens admitted that only 17 inmates (out of a combined population of nearly 2,500) had been tested. Only five tests had been done in the last week.

Seven of those inmates have tested positive for COVID-19, according to the report.

David Patton, Federal Defenders’ executive director, said the number of officially confirmed cases does not comport with reports he’s hearing from incarcerated clients about the apparent spread of COVID-19. “It’s hard for me to quantify how much more robust the testing ought to be, but we certainly receive a lot of reports from clients about people in their units who seem to be quite symptomatic,” Patton said.

At FCI Elkton, the BOP is reporting that only 13 inmates and 14 staff members have tested positive, Joseph Mayle, president of union representing many of Elkton COs, told a Youngstown, Ohio, TV station last Thursday that 67 inmates have either tested positive or are showing symptoms of the virus and that the entire inmate population is being isolated. Plus, he said, 44 inmates have been hospitalized, with 14 on ventilators. Twelve staff members, not the official count of nine, have tested positive, according to Mayle.

pinocchio200413At FCI Danbury, the BOP reported a week ago that fewer than a dozen inmates and only six staff members at the prison had tested positive. On the same day, the Hartford Courant newspaper reported that “inmates claim the number is higher. ‘I am well for now,” an inmate told the Courant on April 2. “It’s ripping through here like crazy. I just got back from medical. I don’t have symptoms. But they have many confirmed cases here. That’s according to medical.”

Sure enough, as of Easter Sunday, the Danbury count had tripled to 37 inmates and 30 staff with COVID-19.

Beyond questions about the accuracy of the BOP’s numbers are complaints about quarantines. In some instances, according to Politico, inmates being quarantined before being sent to home confinement are housed near prisoners being isolated because they’re suspected of having the virus. Politico says that wives of inmates at FCI Cumberland told it the facility is using the facility’s special housing unit – single- or two-person cells where inmates remain locked down for 23 hours daily – to hold both categories of prisoners. “They’re quarantining these healthy inmates with sick inmates that are already down there,” said Angela Sanks, whose husband, Collie, was due out in 2022 and was taken to the SHU for potential release several days ago.

The spouse of an Elkton inmate said her husband, who’s due out of prison in August of next year, was one of 56 inmates whose names were called a week ago to report for quarantine so they could be sent on home confinement. “They were all told: you’re going home,” she said. But on Wednesday, 54 of the men were sent back to their cells. “They told them, sorry, you’re not going anywhere, because they’d approved only two of them to leave.”

pantsonfire160805At MDC Brooklyn, a union official accused officials of transferring inmates with COVID-19 out of quarantine and back into general population only days after they’ve tested positive. BOP officials did not respond to questions about the allegation, according to The Intercept, but the charge was then raised in a court filing by federal public defenders. If the allegation is accurate, it would “call the credibility of the BOP’s representations about the practices at MDC Brooklyn into serious question,” lawyers with the Federal Defenders of New York wrote in a letter to the judge, saying it would “speak to the risk to all the inmates from such practices that are contrary to the CDC’s advice, and in particular the risk to vulnerable inmates.”

In a video address to staff last Friday, BOP Director Michael Carvajal reported that the agency has adequate supplies of personal protective equipment, and was a priority recipient for COVID-19 test kits. He acknowledged that the Centers for Disease Control inspected FCC Forrest City last week, and has been advising FCI Oakdale staff. The Central Office has sent 45 additional COs and a medical support team to Oakdale, and has accepted help from the Ohio National Guard and Army Corps of Engineers at Elkton.

Carvajal said 10 UNICOR factories have pivoted to the manufacturing of masks, nonsurgical gowns, shields, blankets and linens, emergency water and milk supplies and hand sanitizers. He also reported that inmate movement has been cut by 80%, but that there would always be some transfers due to court order.

Georgetown University assistant law professor Shon Hopwood, wrote last week in The Appeal that no one should “look to the DOJ to release enough people to make prisons and their surrounding communities safe.”

proactive200413

“They are always and always have been reactive instead of proactive,” Elkton union official Mayle said.

Sentencing Law and Policy, Latest BOP numbers reveal continued increases COVID-19 cases among federal facilities, inmates and staff (and more releases to home confinement) (Apr. 10)

BOP, Inmate Death at FCI Oakdale I (Apr 10)

BOP, Inmate Death at Butner I (Apr 12)

Law.com, No Coronavirus Tests Since Friday at New York City’s Federal Lockups, Mandated Report Reveals (Apr 7)

Bureau of Prisons, Letter filed in response to Administrative Order 2020-14 (EDNY Apr 9)

Cleveland Scene, The Latest out of Elkton Federal Prison, Where Horror Show Continues Apace (Apr 10)

Hartford Courant, With 20 testing positive for coronavirus, Danbury federal prison ordered to release high-risk inmates to home confinement (Apr 4)

Politico, U.S. prisons’ virus-related release policies prompt confusion
(Apr. 10)

The Intercept, Internal Prison Guard Email Contradicts Government’s Claims To Judges About Containing Coronavirus At Federal Detention Center (Apr. 10)

COVID-19 Video Update: April 10, 2020

The Appeal, Don’t Look To The DOJ To Keep Federal Prisons And Their Surrounding Communities Safe During The Covid-19 Pandemic (Apr 8)

– Thomas L. Root

BOP Updates Home Confinement Policy To Catch Up With First Step – Update for April 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.

BOP ISSUES NEW HOME CONFINEMENT PROGRAM STATEMENT

The BOP finally and officially has directed its staff to issue maximum home confinement (10% of sentence up to a max of 6 months, under 18 USC 3624[c][2]). This, of course, was something the BOP was told to do almost 16 months ago by the First Step Act.

home190109Section 602 of the Act amended 18 USC 3624(c)(2) – which authorizes home confinement for prisoners at the end of their sentences for a period not to exceed the lesser of 10% of their sentences or 6 months – to add that “the Bureau of Prisons shall, to the extent practicable, place prisoners with lower risk levels and lower needs on home confinement for the maximum amount of time permitted under this paragraph.”

The need to add the provision is inexplicable. Home confinement, overseen by the U.S. Probation Office for the BOP, costs about $8.00 a day, compared with imprisonment ($102.60 a day) or halfway house ($94.50 a day).  One would think that home confinement would be the first option a BOP case manager would be directed to consider, given the BOP’s chronic shortage of budget and personnel. It’s as close to a win-win as you can get.

But one would be wrong. The BOP has always been focused on halfway house, with the halfway houses then moving its inmates to home confinement as they got to the 10%/six-month eligibility period.

winwin200408Even after passage of the Act, the BOP used the delay in adoption of the PATTERN risk and needs assessment protocol as a basis for not maximizing home confinement. After all, the argument went, no one knows if someone falls into the “lower risk levels and lower needs” category without a PATTERN analysis.

Now that PATTERN is adopted, the BOP is out of excuses.

The April 3rd directive says the BOP interprets Section 602 “to refer to inmates that have lower risks of reoffending in the community, and reentry needs that can be addressed without RRC placement. The Bureau currently utilizes home confinement for these inmates.
Accordingly, staff should refer eligible inmates for the maximum amount of time permitted under the statutory requirements.”

Of course, the BOP’s adherence to First Step’s directive, like the rest of 18 USC § 3624, is exempted from judicial review by 18 USC § 3625. So there is no policing mechanism other than Congressional oversight to ensure that the BOP does what is undeniably in the agency’s own best interest.

Operations Memorandum 001-2020, Home Confinement Under the First Step Act (Apr. 3, 2020)

– Thomas L. Root

Barr Doubles Down on Quick Home Confinement for At-Risk Inmates – Update for April 6, 2020

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

CAN YOU HEAR ME NOW?

plague200406A week ago, America had 136,000 COVID-19 cases with 2,052 deaths. As of 6 am EDT today, the nation had over 336,830 cases and 9,618 deaths. A week ago, the Bureau of Prisons reported 14 inmates and 13 staff down with the virus. As of 3 pm yesterday, the BOP had 138 inmates and 59 staff down with the virus at Atlanta, Brooklyn, Bennettsville, the Butner complex; Canaan; Carswell; Chicago; Danbury; Elkton; Forrest City; Ft. Dix; Leavenworth, Lompoc, Milan, New York, Oakdale, Otisville, Ray Brook, Talladega, Tucson, the Yazoo City complex, and several RRC offices and facilities.

Also a week ago, Attorney General William Barr urged the BOP to use its statutory authority to release low-risk inmates at heightened risk because of COVID-19. Since then, response has been spotty: at some places, staff has quickly and efficiently carried out the directive, at others, staff is reviewing only people over 65, and at one institution I heard about, the warden told inmates that despite the Barr memo “no one was going anywhere.”

Meanwhile, inmates have begun dying, five at Oakdale and three at Elkton. Danbury has 21 female inmates down with COVID-19, and Lompoc has 17 sick male inmates.

Last Friday, maybe out of desperation as the virus spread, maybe out of irritation with the BOP’s snail pace, Barr issued another memo to BOP Director Michael Carvajal, “directing you to immediately review all inmates who have COVID-19 risk factors, as established by the CDC, starting with the inmates incarcerated at FCI Oakdale, FCI Danbury, FCI Elkton, and similarly situated facilities where you determine that COVID-19 is materially affecting operations. You should begin implementing this directive immediately at the facilities I have specifically identified and any other facilities facing similarly serious problems.”

The memo ordered that the BOP’s review should “include all at-risk inmates—not only those who were previously eligible for transfer.” The eligible inmates should immediately be processed for transfer to home confinement and put in 14-day quarantine.

hearme200406Noting that the US Probation Office is unable to monitor large numbers of inmates in the community, Barr “authorize[d] BOP to transfer inmates to home confinement even if electronic monitoring is not available, so long as BOP determines in every such instance that doing so is appropriate and consistent with our obligation to protect public safety.”

It almost seems that Barr is asking the BOP, “Can you hear me now?”

The directive that the BOP use its CARES Act § 12003(b)(2) authority will clearly cause some disparities in treatment. By focusing on institutions where the COVID-19 is present, nearly 100 facilities may see few if any releases for now. Furthermore, the release may skew strongly in favor of minimum-security inmates.

Kyle O’Dowd, associate executive director of policy for the National Association of Criminal Defense Lawyers, expressed his concern to Law360 a week ago that the release directive “won’t be implemented as robustly as it needs to be. There is a history of BOP being pretty conservative in their application of authorities they already have.” He was especially concerned that PATTERN scores would be used as a basis for home confinement decisions. “”If it is relied on too heavily, I think we will see just a trickle of releases rather than the more expansive application of that authority that we need under the current circumstances,” he said.

corona200313The BOP, of course, is in the middle of a 14-day lockdown, intended to arrest the spread of COVID-19. The action, started April 2, is subject to extension. One criminal justice advocate expressed disappointment in the lockdown, saying it is likely to aggravate problems related to the virus, not ameliorate them.

“How incredibly short-sighted, contrary to the advice of any experts, and inhumane,” Chris Geidner of the Justice Collaborative wrote on Twitter. The Week complained that the lockdown may be “too little, too late. Inmates will remain packed in close quarters, eating and bathing communally, disproportionately likely to have comorbidities which exacerbate the risk posed by COVID-19, and too often stuck with insufficient medical care or hygiene supplies.”

At the same time, there is ample concern that the BOP is not an especially trustworthy arbiter of home confinement decisions, based on its COVID-19 record to date. A week ago, the Washington Post noted that the BOP “updates confirmed coronavirus cases most afternoons on its website, but there has been a lag between cases reported by the officers’ union and prison officials.” It observed that BOP staff at Oakdale had “asked prison officials — weeks before the first coronavirus case — to shut down a prison labor program within the facility, where more than 100 prisoners make inmate clothing.” According to correctional officers union official Corey Trammel, the UNICOR line was not shut down until after the first inmate tested positive.

And although the BOP has admitted to COVID-19 outbreaks at BOP-contracted halfway houses in five locations, it told a reporter for The Appeal that it had “no factual evidence to support… allegations” that the facilities were at high risk for coronavirus outbreak.

plagueB200406Most damning, however, might be last Friday’s Marshall Project report that Dr. Sylvie Cohen, the BOP’s chief of occupational and employee health, ordered several Oakdale staff members back to work the day after they took inmate Patrick Jones (who later became the BOP’s first COVID-19 death) to the hospital. The correctional officers were issued no protective equipment other than latex gloves. Dr. Cohen, according to the story, directed that “officers should work unless they showed symptoms. This contradicts the recommendations the Centers for Disease Control was giving for first responders and other frontline workers and the specialized guidance it issued a day later for prisons and jails, calling for people who have had close contact with a confirmed case of COVID-19 to isolate themselves at home for 14 days.”

Like the Post, The Marshall Project suggested that the BOP’s official count of inmates and staff with COVID-19 was low. “Union officials say the toll is much higher,” the story noted. “On Wednesday,” the story reported, “prison brass met with a few dozen people held at the camp to discuss the virus, according to two of their family members. ‘Look, we probably all have it,’ officials told the prisoners, according to the wife of one man who attended. ‘It’s too late for us.’ They apologized, and said they were scared too, said the woman…”

Dept. of Justice, Increasing Use of Home Confinement at Institutions Most Affected by COVID-19 (Apr. 3)

Law 360, Federal Prisons Can Send More Inmates Home. Will They? (Mar. 26)

Washington Post, An explosion of coronavirus cases cripples a federal prison in Louisiana (Mar. 29)

Politico, Federal prisons start 14-day lockdown to fight virus (Apr 1)

The Week, When a prisoner dies of coronavirus, is the virus really to blame? (Apr. 2)

The Appeal, Halfway House Residents Describe ‘A Scary Situation’ As Coronavirus Sweeps the U.S. (Mar. 31)

The Marshall Project, Federal Prisons Agency “Put Staff in Harm’s Way” of Coronavirus (Apr. 3)

– Thomas L. Root

BOP Records First COVID-19 Death As Congress OKs Expanded Home Confinement – Update for March 30, 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.

BARR AND THE CARES ACT

death200330A week ago, America had 35,000 COVID-19 cases with 40 deaths. As of this morning, the nation has over 143,000 cases and 2,052 deaths. The Federal Bureau of Prisons’ very questionable numbers, as of yesterday, showed 14 inmates and 13 staff down with the virus. The actual inmate number is undoubtedly much higher than what the BOP is willing to admit.

On Saturday night, a low-security inmate at FCI Oakdale I, 49-year old Patrick Jones, became the BOP’s first COVID-19 death. Jones, 49, was transferred to a hospital on March 19, days before the BOP admitted to having any inmates who had tested positive for COVID-19. He was placed on a ventilator the next day. Jones, who suffered from “long-term, pre-existing medical conditions” considered risk factors for severe coronavirus illness, died Saturday at the hospital, a BOP news release said.

Last Thursday, Attorney General William Barr instructed the Bureau of Prisons to “prioritize the use of your statutory authorities to grant home confinement for inmates” in response to the virus.

That “statutory authority” got a lot broader the next day, when Congress passed The CARES Act, which President Trump signed the same day. Buried in its 373 pages is a single section devoted to the BOP.  Section 12003(b)(2) provides that

(2) HOME CONFINEMENT AUTHORITY.—During the covered emergency period, if the Attorney General finds that emergency conditions will materially affect the functioning of the Bureau, the Director of the Bureau may lengthen the maximum amount of time for which the Director is authorized to place a prisoner in home confinement under the first sentence of section 3624(c)(2) of title 18, United States Code, as the Director determines appropriate.

emergency200330The “covered emergency period” began when Trump declared a national emergency and ends 30 days after he declares that the emergency has ended.

Under 18 USC § 3624(c)(2), the BOP can send an inmate to home confinement for not more than 10% of his or her sentence, up to a maximum of 6 months. The CARES Act provision has lifted the 10%/6-month limitation. This means that the BOP can send anyone with anything short of a life sentence to home confinement right away.

Sec. 12003 provides no guidance whatsoever as to how the BOP should pick the people to go to home confinement, or even if it should send anyone at all. However, Sec. 12003(c)(2) exempts any BOP rules on how to do it from the notice-and-comment requirements of the Administrative Procedure Act, which means the BOP can roll out its own rules immediately.

The CARES Act passage makes Barr’s Thursday memo much more important. While the only authority the BOP has to wield as of Thursday was the Elderly Offender Home Detention Program (34 USC § 60541(g)(5)), it can now move many more people. Barr’s memo specified what the BOP should consider in making its decisions:

• inmate’s age and vulnerability to COVID-19 under Centers for Disease Control and Prevention (CDC) guidelines;

• The inmate’s security level, with priority given to inmates residing in low and minimum security facilities;

• The inmate’s conduct in prison, with inmates who have engaged in violent or gang-related activity in prison or who have incurred a BOP violation within the last year not receiving priority treatment;

• The inmate’s PATTERN score, with inmates who have anything above a minimum score not receiving priority treatment;

• Whether the inmate has a “demonstrated and verifiable re-entry plan that will prevent recidivism and maximize public safety, including verification that the conditions under which the inmate would be confined upon release would present a lower risk of contracting COVID-19 than the inmate would face in his or her BOP facility;” and

• The inmate’s crime of conviction, and assessment of the danger posed by the inmate to the community.

The memo stated that “some offenses, such as sex offenses, will render an inmate ineligible for home detention. Other serious offenses should weigh more heavily against consideration for home detention.”

BOP proposes holding anyone it releases in quarantine for 14 days prior to release to home confinement.

corona200313How much of this will happen? The devil’s in the details. The U.S. Probation Office has to approved residences for people going to home confinement, and Probation monitors people once they go home (usually with ankle monitors). There is a real possibility for a bottleneck as the U.S. Probation Office runs short of people to approve residences and of ankle monitors with which to take home confinement detainees.

Yesterday, the Marshall Project complained that Barr’s memo blocks anyone convicted of a sex offense or violent crime from being released to home confinement. DOJ policy also bars all non-citizens convicted of immigration-related offenses from serving out their time at home. Neither “sex crime” nor “violent crime” is defined in the memo, leaving the interpretation to the BOP. Note that The CARES Act leaves implementation of expanded home confinement to the BOP’s discretion.

Of course, nothing in the Barr memo or The CARES Act limits anyone’s right – even people with sex offenses or violent crimes – to seek compassionate release under 18 USC § 3582(c)(1)(A)(i).

Washington Post, An explosion of coronavirus cases cripples a federal prison in Louisiana (Mar. 29, 2020)

William Barr, Prioritizarion of Home Confinement as Appropriate In Response to COVID-19 Pandemic (Mar. 26, 2020)

The CARES Act, H.R. 748 (signed into law Mar. 27, 2020)

The Marshall Project, How Bill Barr’s COVID-19 Prisoner Release Plan Could Favor White People (Mar 28, 2020)

– Thomas L. Root

BOP Directed to Send Some Boomers Home – Update for March 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.

ATTORNEY GENERAL TELLS BOP TO SEND SOME PEOPLE HOME

Attorney General William Barr moved yesterday to release some federal inmates at heightened risk from the coronavirus, but he said no one would be freed immediately under the policy because of the need to make sure prisoners are not spreading the virus into the community.

corona200313Barr told the BOP in a memo to prioritize granting home confinement to inmates who were convicted of lower level crimes, have shown good conduct behind bars and have plans for release that won’t put them and others at greater risk for contracting the virus.

“We don’t want our institutions to become petri dishes,” Mr. Barr said at an unrelated news conference. “We have the protocols that are designed to stop that. One of those tools will be identifying vulnerable prisoners who would make more sense to allow to go home to finish their confinement.”

The attorney general said he asked BOP officials last week about protecting vulnerable inmates and lowering the chances of a serious outbreak by lowering prison populations.

“I asked if it was possible to expand home confinement, particularly for those older prisoners who have served substantial parts of their sentences and no longer pose a threat and may have underlying conditions that make them particularly vulnerable,” Barr said.

Barr told prison officials to give priority to inmates held in low and minimum security facilities; to those who haven’t been involved in violence or gang activities; and to those with low PATTERN scores. Those convicted of serious offenses, including sex crimes won’t be eligible, Barr said.

Barr’s guidance overlaps with a provision in the relief bill the U.S. House of Representatives is expected to pass TODAY, which lets the BOP shift federal inmates into home confinement sooner. Under 18 USC § 3624(c) as currently written, home confinement is capped at six months or 10% of a sentence, whichever is shorter. The bill removes that limit during the pandemic. The moves come as prisons are detecting more cases of the deadly virus.

release160523As of Thursday morning, Barr said six federal inmates and four staffers had tested positive for the virus, prompting the lockdown of several facilities, including ones in New York City, Atlanta and Louisiana. Barr said he’s getting reports of additional cases as well, but didn’t have the details.

As of yesterday’s 3 pm BOP update, the number had climbed to 10 inmates and eight staff, at MDC Brooklyn, MCC New York, USP Atlanta, FCI Oakdale and in halfway houses in Phoenix and Brooklyn. Staff have tested positive at Butner, NC; Ray Brook, NY; New York City; Danbury, CT; Yazoo City, MS; Leavenworth, KS; Atlanta, GA; and Grand Prairie, TX.

Criminal justice experts welcomed the idea of releasing more inmates to home confinement, but hoped the BOP would break its track record of granting release or home confinement in fewer cases than it could. Kyle O’Dowd, associate executive director of policy for the National Association of Criminal Defense Lawyers, told Law360 that while the law and the memo are steps in the right direction, it remains to be seen how the BOP will carry them out.

“My concern is that it won’t be implemented as robustly as it needs to be. There is a history of BOP being pretty conservative in their application of authorities they already have,” O’Dowd said.

Any prisoners moved out of federal facilities as part of the effort would be held in quarantine within the prison for 14 days before release to make sure they are not infectious, Barr’s memo said. Those convicted of sex offenses would not be considered for release, and those serving time for “serious offenses“ would have less chance of getting out, the directive said.

In some cases, vulnerable prisoners might be at less risk in jail than they would be at home, Barr argued. “Many inmates will be safer in BOP facilities where the population is controlled and there is ready access to doctors and medical care,“ he wrote.

Ohio State University law professor Doug Berman wrote in his Sentencing Law and Policy blog that

[e]ven assuming that only a very small percentage of prisoners, say, only 1 out of every 15 current federal prisoners, meet the home confinement criteria, that would still mean that well over 11,000 federal prisoners would be eligible to head home to serve out the rest of their sentences. Because BOP has a well-earn reputation for being unwilling or unable to help prisoners get out of federal facilities early, I am not so confident that we will soon be seeing thousands of federal prisoners heading home. But the directive from AG Barr now would seem to make that more of a possibility.

Politico, Feds may send some prisoners home due to virus risk (Mar. 26, 2020)

Wall Street Journal, Barr Tells Federal Prisons to Increase Use of Home Confinement, Fearing Spread of Coronavirus (Mar. 26, 2020)

Law360.com, Federal Prisons Can Send More Inmates Home. Will They? (Mar. 26)

Sentencing Law and Policy, Will thousands of federal prisoners be eligible for home confinement under AG Barr’s new guidelines? (Mar. 26)

– Thomas L. Root

COVID-19 Wave About to Break on Prisons? – Update for March 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.

CORONAVIRUS TSUNAMI THREATENS PRISON SYSTEM

A week ago, the United States had 3,500 confirmed COVID-19 cases, with 40 deaths. A scant seven days later, those numbers have increased by an order of magnitude: the nation has just passed 35,000 confirmed cases – including several members of Congress – and 413 deaths. And although some local and state governments are releasing thousands of inmates in order to prevent a coronavirus outbreak in crowded jails and prisons, there is no federal move to do so.

corona200323

As of last night, The Wall Street Journal reported, the Bureau of Prisons had confirmed three staff and three inmate cases. One of the BOP staff members who is presumed positive worked at a New Hampshire facility and may have been in contact with inmates, a BOP official told CBS News. The BOP only admits to one staffer at its offices in Grand Prairie, Texas (no prison there), one at USP Leavenworth (who, the BOP states, had no inmate contact), and one at FCI Yazoo City, Mississippi. The inmates are allegedly at MDC Brooklyn and FCI Oakdale II, Louisiana.

But despite inmate rumors to the contrary (and there are a lot of them), the BOP is not using its furlough power, its home confinement placement policies under 18 USC § 3624(c)(2), the Elderly Offender Home Detention program under 34 USC §60541(g), or ability to recommend compassionate release under 18 USC § 3582(c)(1)(A) to speed the release of vulnerable inmates.

And it’s not for lack of pressure: Last week, the ACLU called on Attorney General William Barr to “immediately seek sentences consistent with retroactive application of provisions of the First Step Act, including the 851 enhancement, safety valve, and 924(c) “stacking” provisions.” The ACLU demanded that BOP increase use of compassionate release for those over 65, have a medical condition; or who suffer from diseases making them vulnerable to the COVID-19 disease, and people within a year of release.

On Thursday, the Federal Public & Community Defenders asked DOJ to direct the BOP to grant the maximum amount of home confinement and to expand its reasons for recommending compassionate release to include risks of coronavirus to “identified persons over the age of 60, as well as persons with diabetes, respiratory problems, and compromised immune systems as facing special danger from COVID-19.”

Inmate rumors that the BOP will release minimum security inmates were stoked last night when President Trump said the White House is considering issuing an executive order to release elderly, nonviolent offenders from federal prisons amid the coronavirus pandemic.

“We have been asked about that, and we’re going to take a look at it. It’s a bit of a problem,” Trump told reporters at a White House news conference. “But when we talk about totally nonviolent, we’re talking about these are totally nonviolent prisoners, we’re actually looking at that, yes.”

The President said no more on the subject than that, and readers should be cautioned that the President has made similar statements previously (such as having a list of 3,000 people for clemency) that have not ripened into action.

Last week, inmates were buzzing about a petition posted at the website change.org, demanding that President Trump order all BOP campers be sent to home confinement for the duration of the COVID-19 emergency. As of this morning, the petition had over 39,000 signatures.

coronadog200323Inmates face substantial risks due to the tight spaces in crowded conditions and strained health-care systems, according to experts. An opinion column in The New York Times last week warned that prisons and jails would be “the epicenter of the pandemic” unless action was taken. A similar column in The Washington Post warned, “Unless government officials act now, the novel coronavirus will spread rapidly in our jails and prisons, endangering not only prisoners and corrections workers but the general public as well.”

“We’re all headed for some dire consequences,” The Wall Street Journal quoted Daniel Vasquez, a former California warden, as saying. “I think it’s going to be impossible to stop it from spreading.”

CBS News reported Thursday that BOP employees say their lives are in danger after bungled instructions and widespread supply shortages. “The agency is in chaos,” CBS quoted Joe Rojas, regional vice president of a correctional officer labor union, as saying. “We are just scrambling to get things in order.” At a Florida FCI, BOP staffers told CBS News that officers transferring inmates lack access to protective gear, soap, and hand sanitizer. Gloves are in short supply, and workers plan to reuse disposable masks.

“Our supply is very limited,” Kristan Morgan, vice president of an officers’ union, told CBS. “It’s kind of like survival of the fittest at this point.” She said she spent Tuesday afternoon admitting a busload of 12 new inmates, all of whom had high fevers. The facility’s doctor is out sick, and their two nurses and one nurse practitioner are working around the clock. BOP staff have started to call in sick in order to avoid exposure. “They feel really betrayed,” said union president Ray Coleman said.

A BOP spokesperson told CBS everything was fine. Cleaning, sanitation and medical supplies at federal prisons had been inventoried as part of the bureau’s pandemic influenza contingency plan, she said, and “an ample amount of supply is on hand and ready to be distributed or moved to any facility as deemed necessary… The Bureau of Prisons is prepared to address any supply concerns if necessary.” Uh-huh.

Pinocchio160812Inmate COVID-19 fears do not much impress government prosecutors. Federal prosecutors argued in an SDNY felon-in-possession case that being locked up was probably safer than being free. Jail is “by its very nature isolated from the outside world,” they said, opposing a request for home confinement by Clifford Taylor, who is currently in MCC New York awaiting trial. The government said Taylor had not shown that the apartment of his children and mother, where he asked to be allowed to stay, would be any safer from the virus.

Wall Street Journal, Jails Release Prisoners, Fearing Coronavirus Outbreak (Mar 22)

CNN, President Trump says he is considering an executive order freeing elderly nonviolent federal prisoners (Mar. 22, 2020)

Wall Street Journal, Trump Shuns Use of Law Allowing Control Over Manufacturers (Mar. 23)

 

ACLU, Letter to DOJ and BOP On Coronavirus And The Criminal Justice System (Mar 18)

Federal Public & Community Defenders Legislative Committee, Letter to Attorney General William Barr (Mar 19)

Change.org, Home-confinement to lessen Camper’s exposure to the deadly COVID-19 virus (Mar 11)

The New York Times, An Epicenter of the Pandemic Will Be Jails and Prisons, if Inaction Continues (Mar 16)

Washington Post, We must release prisoners to lessen the spread of coronavirus (Mar 17)

CBS News, Federal prison workers say conflicting orders on coronavirus response is putting lives at risk (Mar 19)

Bloomberg, Jail Safer Than Outside, U.S. Says As Release Bids Mount (Mar 18)

– Thomas L. Root

BOP Hunkers Down for COVID-19 – Update for March 16, 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.

UNDER PRESSURE, BOP ROLLS OUT CORONAVIRUS PLAN

As of Sunday night, the novel coronavirus (COVID-19) has sickened over 169,000 people worldwide. More than 6,500 people have died. Confirmed cases in the US exceed 3,750, with over 69 deaths.

corona200313A week ago, the Bureau of Prisons began using a screening tool that includes question about whether inmates or staff members have traveled through any risk countries, had close contact with anyone diagnosed with COVID-19 or been in areas with the virus within two weeks. The tool also assessed possible symptoms, including fever, cough and shortness of breath, the Associated Press reported.

The New York Daily News reported last Monday that the local Federal Defenders organization presented the BOP with “a five-step plan… to handle coronavirus, including a comprehensive testing protocol and requesting that no new inmates be housed at the jails without being tested for the virus first.” The Defenders were focused on the troubled MCC New York – where Jeffrey Epstein died – and MDC Brooklyn, which together hold about 2,300 inmates.

Also on Monday, 15 Democratic senators sent BOP Director Michael Carvajal a letter expressing concern about a possible COVID-19 outbreak in federal prisons. “Over 175,000 individuals are incarcerated in federal prisons and jails, and thousands of incarcerated people, their families and friends, and correctional staff move in and out of federal prisons every day,” according to the March 9 letter. “The unconstrained spread of coronavirus in federal prisons and jails endangers the federal prison population, correctional staff and the general public.”

By Thursday, the BOP addressed mounting concern from lawmakers, union officials and criminal justice advocacy groups that federal prisons aren’t equipped to manage a spread of coronavirus in the prison population. Rep. Jerrold Nadler (D-New York), chairman of the House Judiciary Committee, added to the pile-on with a letter to Attorney General William Barr that demanded answers on BOP preparedness for the inevitable spread of COVID-19 to federal facilities. Nadler said he was “especially concerned because the incarcerated and justice-involved populations contain a number of groups that may be particularly vulnerable to COVID-19. In particular, health conditions that make respiratory diseases more dangerous are far more common in the incarcerated population than in the general U.S. population.”

The BOP told the largest federal correction officers union during a meeting on Thursday that it was poised to announce major steps to deal with the challenge. Joe Rojas, a regional union official, said, “The Justice Department needs to be proactive instead of reactive.” Rojas said there have already been scares in BOP facilities in Seattle and Miami.

visitsuspend200316

Then, the BOP announced Friday afternoon that it was canceling visitation for 30 days, curtailing legal visits, suspending inmate transfers, and suspending use of volunteers and non-essential contractors. Additionally, the Bureau said it will modify “operations to maximize social distancing and limit group gatherings in our facilities. For example, depending on the facility’s population and physical layout, the institution may implement staggered meal times, recreation, etc. These modifications will be reevaluated in 30 days.”

Nevertheless, union officials and inmate advocates warn that the combination of chronic understaffing, a new leave policy and the realities of coronavirus quarantines could lead to the first nationwide federal prison lockdown since 1995. Aaron McGlothin, head of the local union at FCI Mendota in California, said, “You’ve got to understand we’re in a prison — there’s nowhere to go,” he stressed. “If somebody comes down sick, what are you going to do? Everybody’s going to get sick.”

Union officials are also questioning a BOP leave policy issued in an internal memo last Monday. The policy says staff who contract the coronavirus and have symptoms must use sick leave to self-quarantine. The memo said it follows guidance from Office of Personnel Management, which advises the federal government workforce on leave policies. Union officials, however, complain the policy discourages those who have the virus from staying out as long as necessary.

BOP prison employees receive about 13 days of sick leave a year. But the Centers for Disease Control and Prevention recommends 14 days of isolation for those who only have been exposed and says those who are sick should remain quarantined until medically cleared, which could be much longer.

prisonhealth200313That means most BOP employees would have to borrow time they had not yet accrued if they do get sick. And even then, it might not cover the full time needed to get better and no longer be contagious. “I wouldn’t want to give them any excuse or reason to come back in before they’re ready,” said Rick Heldreth, the local union president at FCI Hazelton. That’s in contrast to BOP guidance for those who have potentially come in contact with the virus but have no symptoms: They are allowed to use administrative “weather and safety” leave for up to 14 days.

“Everybody is saying, what the hell does this mean? If you have the symptoms? If you don’t have the symptoms?” said Rojas. “It’s just a mess.”

Conditions could deteriorate to a lockdown or mass outbreak situation, Rojas said. It’s been more than 24 years since the entire BOP was locked down. At that time, inmates were fed in their rooms and all recreational activities were canceled following a series of prison unrest incidents in 1995.

Kaiser Health News, Coronavirus Puts Prisons in Tight Spot Amid Staff Shortages, Threats of Lockdown (Mar. 13)

Newsweek, Coronavirus Could Cause ‘Public Health Catastrophe’ in Overcrowded Jails Warns Prison Reform Group The Sentencing Project (Mar. 11)

AP, US prisons, jails on alert for spread of coronavirus (Mar. 7)

Bloomberg Quint, Prisons’ Coronavirus Risk Puts Justice Department Under Pressure (Mar. 13)

BOP, Federal Bureau of Prisons COVID-19 Action Plan (Mar. 13)

– Thomas L. Root

Burgers and Bullets Make a Bad Week for BOP – Update for March 10, 2020

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

BOP HAS A BAD WEEK

Last week was a trial by fire for new BOP Director Michael Carvajal. But as an old custody hand, the Director probably found the issues were hardly new.

hamburger160826First, the Dept. of Justice Inspector General issued a report last Tuesday criticizing the BOP for failing to adopt policies to safeguard against serving potentially contaminated food to inmates, a problem that led the agency to buy substandard products (like $1 million worth of adulterated meat, including whole cow hearts that were labeled “ground beef”). The IG faulted the BOP for not having “a protocol in place to ensure its food supply is safe” and failing to “properly document or communicate food vendor quality issues.”

“The BOP should develop a quality assurance plan… to mitigate the risk that a vendor could deliver a substandard product,” the IG wrote.

Two days later, a shakedown at MDC New York – the prison already on the ropes for letting Jeffrey Epstein kill himself last summer – turned up vast quantities of contraband, including a loaded gun, inside the facility.

manyguns190423The Associated Press reported that the discovery “marked a massive breach of protocol and raised serious questions about the security practices in place at the Bureau of Prisons, which is responsible for more than 175,000 federal inmates, and specifically at the jail, which had been billed as one of the most secure in America.” Three BOP officials told the AP that the US Attorney has opened a criminal investigation into potential misconduct by COs, focusing on the flow of contraband into the lockup uncovered during the search for the gun.

DOJ Inspector General, Management Advisory Memorandum of Concerns Identified with the Federal Bureau of Prisons’ Procurement of Food Products (Mar. 3)

Reuters, Poor controls led U.S. prisons to buy whole cow hearts disguised as ground beef: watchdog (Mar. 3)

Associated Press, AP Exclusive: Gun found inside Epstein jail during lockdown (Mar. 5)

– Thomas L. Root