Tag Archives: BOP

Notorious MCC Closing ‘Temporarily’… And Other BOP Follies of the Week – Update for August 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.

BOP HAS ANOTHER TOUGH NEWS WEEK

I Love New York:  The Dept. of Justice announced last Thursday that the Bureau of Prisons will “temporarily” close the Metropolitan Correctional Center in New York, the high-rise jail near the Federal Courthouse in lower Manhattan.

The decrepit facility, described by the New York Daily News as “dysfunctional,” has been a headline-generating public relations disaster for the BOP in the past several years.

renovate210830The closure was described as being temporary, reminiscent of restaurant “closed for renovation” announcements to mask abandonment of the premises. Indeed, the Daily News said, “Sources were skeptical the jail would ever resume operations resembling previous years, when it held 700 or more inmates.”

The decision to close comes weeks after Deputy Attorney General Lisa O. Monaco inspected the facility “given ongoing concerns,” as the DOJ said at the time.

The New York Times reported that MCC has been criticized “by inmates, lawyers and even judges for the conditions in which prisoners have been held.” It’s the prison where two COs were indicted for lying after celebrity prisoner Jeffrey Epstein, who was facing sex-trafficking charges, was found dead in his cell in August 2019 in what was ruled a suicide. In early 2020, a handgun was found in the jail during a shakedown.

In January, the facility received its fourth warden in less than two years. As the coronavirus took hold, MCC employees weren’t able to get masks and staff restrooms ran out of soap because employees charged with refilling the dispensers were pressed into duty as COs due to staff shortages. In May 2020, a court-authorized inspection found that inmates with COVID symptoms were ignored and social distancing was almost nonexistent.

Earlier this year, the MCC “was rocked by allegations that an inmate whose lawyer says he has the mental capacity of an 8-year-old child was left in a holding cell for 24 hours while awaiting a competency evaluation,” Associated Press reported. “Around the same time, a correctional officer at the facility had also reported sexual misconduct by a superior, which officials at the jail delayed reporting to senior BOP officials.”

“The MCC has been a longstanding disgrace,” New York Federal Public Defender David Patton told the Times. “It’s cramped, dark and unsanitary. The building is falling apart. Chronic shortages of medical staff mean that people suffer for long periods of time when they have urgent medical issues.” But, Mr. Patton added, MDC Brooklyn (across the river from the MCC) has many of the same problems, and if the MCC prisoners are sent there without those problems being addressed, “this move will accomplish nothing.”

frying210830Most of the 263 inmates at the MCC will be moved to MDC Brooklyn, according to Courthouse News Service, which many may seem as “out of the frying pan and into the fire.” MDC Brooklyn, where a power outage and BOP management prevarications made the news in January 2020, is still embroiled in a lawsuit brought by the NY Federal Public Defender accusing the BOP of “false statements and stonewalling” by “refusing to provide detailed or accurate information about the conditions at MDC” during the power outage. The district court in which the suit is being heard has appointed former US Attorney General Loretta Lynch as mediator in the case.

You may recall that last April, US District Court Judge Colleen McMahon said that both MCC and MDC are “run by morons.” During a sentencing proceeding, McMahon castigated the BOP, saying the agency’s ineptitude and failure to “do anything meaningful” at the two facilities amounted to the “single thing in the five years that I was chief judge of this court that made me the craziest.”

Lynch said Friday her team has been conducting “stress tests” at MDC Brooklyn to better understand problems there, such as how to improve scheduling of in-person visits. She said the BOP and inmates should anticipate that moving additional prisoners to the Brooklyn facility will “create its own ‘stress test,’ separate and apart from the ones that we have been using,” she said.

horrendous210830Southern Comfort:  Meanwhile, Forbes published a piece last Monday describing the horrific conditions at what is left of FCI Estill after the prison was damaged by a tornado nearly 18 months ago. About 1,000 medium-security prisoners were relocated, but 66 minimum-security inmates remain, having been moved into the medium-security facility. “When the Campers arrived at the FCI, floors were covered in water, urine and feces,” Forbes reported. “Toilets were clogged, black mold and mildew could be seen throughout the facility. The vents were filthy and covered in black soot. Debris from the remaining infrastructure hung from the ceiling. Medications were suspended to inmates and anxiety ran high over COVID-19 outbreaks. The only hope for these remaining inmates was that these conditions would be short-lived and some normalcy to prison life would return. However, not much has changed in the 16 months since and these men still live in inhumane conditions.”

While the inmate count fell by 95%, “the staffing level of the facility has remained roughly the same as it was prior to the tornado (approximately 221).” That would seem to be 221 employees who could be used elsewhere…

Take This Job and Shove It:  Is it any wonder BOP employees are quitting in droves? That’s the question Business Insider asked last week. “About 3,700 staffers left the BOP from March 2020 to July 3, 2021, according to agency data… That translates to the equivalent of more than 8.4 employees departing every day during that period… Current departure numbers are even more striking because the overall number of BOP employees isn’t going up — it’s going down. In 2015, there were 37,258 employees, according to a Government Accountability Office analysis of the agency’s employment data. By 2017, that number dropped to 35,569. In 2019, it stood at 34,857.”

So much for the BOP’s much-ballyhooed hiring initiative…

job210830The COVID-19 pandemic and augmentation have increasingy strained prison workers, which could cause more prison workers to quit as staffing conditions continue to erode, union representatives told Business Insider. “I was mentally stressed out and physically drained at the end of the day,” a former custody officer at the US Penitentiary, Thomson, facility in the northwestern region of Illinois, said. “I used to dread going to work. There were way too many inmates for the amount of stuff that’s there.”

New York Daily News, NYC federal jail where Jeffrey Epstein killed himself to close (August 26, 2021)

New York Times, Justice Dept. to Close Troubled Jail Where Jeffrey Epstein Died (August 26, 2021)

The Hill, DOJ to ‘at least temporarily’ close jail where Jeffrey Epstein died (August 26, 2021)

Associated Press, U.S. Is Closing The Troubled NYC Jail Where Jeffrey Epstein Killed Himself (August 26, 2021)

Courthouse News Service, Manhattan jail closure renews concerns over Brooklyn facility conditions (August 27, 2021)

Forbes, Federal Inmates Live In Deplorable Conditions A Year After Tornado Destroyed Most of FCI Estill (August 23, 2021)

Business Insider, Unrest at the big house: federal prison workers are fed up, burned out, and heading for the exits (August 25, 2021)

– Thomas L. Root

The Delta on Delta – Update for August 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.

RELENTLESS

COVID’s back… and we’ve got it.

Really, COVID never really left. But seven weeks ago, the BOP reported only 29 inmates and 132 staff with COVID, with the virus present in 70 facilities. As of yesterday, 532 inmates and 414 staff had tested positive for the virus at 106 institutions. Four more inmates had died, two last week.

delta210827In public health, of course, “delta” has lately referred to the novel coronavirus delta variant. In math, “delta” refers to the change in a variable (such as “∆x” meaning the change in the value of x). Why this high school math reminder? Because in the BOP, the ∆Covid∆ – that is the change in COVID-19 delta variant infection – is accelerating for both inmates and staff.

Last week, I heard from an inmate who said his institution was offering a special meal and a movie to inmates who agreed to get vaccinated. That was indirectly confirmed by Government Executive magazine, which reported last week that the BOP has “provided guidance about vaccine incentives for inmates to all of the agency’s chief executive officers in an effort to improve institution inmate vaccination rates.”

Currently, the BOP reports that 56.8% of inmates and 52.9% of staff are vaccinated. Despite the President’s announcement that unvaccinated federal employees generally will be treated like Typhoid Mary, the BOP staff rate has not budged a full percentage point in six weeks, while the inmate number has increased by over three. And as Salon reported last week, researchers found that BOP data show that “the infection rate among correctional officers [drives] the infection rate among incarcerated individuals.” The research shows “a three-way relationship between the infection rate of officers, incarcerated individuals and the communities around prisons.

Things are likely to get worse before they get better. Scientists are still unsure how many new infections are “breakthrough” cases in which vaccinated people are catching COVID anyway. Last week, the Administration announced that some people with a two-shot vaccination should get a booster. And while COVID-19 Delta is six times as virulent as old-fashioned COVID-19, yet another variant – COVID-19 Lambda – has just been identified.

coviddelta210827

Of course, continuing COVID also means continuing opportunities for compassionate release, despite the fact that vaccinations may make proving susceptibility to COVID more difficult. One thing is sure, for all the people who have been asking: Judges may consider that having the vaccine makes one less likely to get COVID, but to a judge, they consider someone who turned down the vaccine to be unworthy of a compassionate release.

Government Executive, Coronavirus Roundup: Booster Shot News; GSA Rethinks the Future of Work (August 17, 2021)

Salon.com, Correctional officers are driving the pandemic in prisons (August 19, 2021)

Bloomberg, The Vaccinated Are Worried and Scientists Don’t Have Answers (August 22, 2021)

– Thomas L. Root

Watching You Watch Them – Update for August 19, 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.

QUIS CUSTODIET IPSOS CUSTODES?

emily210819I owe a debt of gratitude to my sainted Latin teacher, Emily Bernges, late of Sturgis, Michigan. One of the best teachers I ever had, Mrs. Bernges instilled a love of the great dead language in me… so much so that decades later, when I read that the Dept. of Justice Office of Inspector General caught some BOP corrections officers sneaking past the metal detector, I immediately thought of the Roman poet Juvenal’s lament.

Quis custodiet ipsos custodes? As Emily taught me to translate it, “Who shall guard the guards themselves?”

The Inspector General issued an urgent advisory a week ago, reporting that a “review of an unidentified BOP facility’s video monitoring system revealed that staff were able to enter the facility during the night shift and walk around the metal detector without being screened. After discussing the matter with BOP personnel at the facility, we are concerned that this presents systemic concerns.”

Fox News reported that the IG’s recommendation came in connection with an investigation of the presence of contraband at the unnamed federal prison. (I might add that since I mentioned this in last week’s newsletter, I have inmates at a dozen or better places email me to volunteer that the unnamed institution had to be their facility. How far matters have devolved!

The advisory, which had been delivered to the BOP a week before, recommended that BOP staff members not be allowed to enter an institution without being screened by other personnel, and the BOP should ensure that its facilities are properly staffed to ensure that all staff and their belongings are properly searched before staff enters BOP facilities.

Carvajal said the BOP was immediately adopting the recommendations.

Other bad news for the BOP last week: ABC News reported last week that while it’s customary for the BOP to carry out an after-action review of a major incident that occurred inside a federal prison within months of an incident, the report on how Jeffrey Epstein killed himself at MCC New York has yet to be released, two years after the suicide. Former Attorney General William Barr, just days after the death in 2019, said, “We will get to the bottom of it, and there will be accountability.”

whitewash210819Tyrone Covington, the MCC union local president, said he’s hoping it comes out so the public can see “what took place, and end some of the skepticism out there about the Bureau of Prisons, and what happened to Jeffery Epstein.”

Finally, USA Today and The Marshall Project reported last week that despite the First Step Act’s requirement that the federal prison system expand access to medications for prisoners addicted to opioids (and the millions appropriated to fund the program), as of July, the BOP had managed to put only 268 people on medications to treat opioid dependence. This is less than 2% of the more than 15,000 people the BOP itself estimates are eligible. Even while the DOJ investigates other prisons and jails for not providing these medications, the Bureau “lacks key planning elements to ensure this significant expansion is completed in a timely and effective manner,” the GAO said in a report last May.

DOJ Inspector General, Notification of Urgent Security Concerns Involving Staff Entering BOP Facilities (August 12, 2021)

Fox News, Department of Justice urges Bureau of Prisons to tighten security around searching staff (August 12, 2021)

ABC News, More questions than answers 2 years after Epstein’s suicide (August 11, 2021)

USA Today, Drugs that treat opioid addiction and overdoses not widely available in federal prisons (August 10, 2021)

GAO, Improved Planning Would Help BOP Evaluate and Manage Its Portfolio of Drug Education and Treatment Programs (May 2021)

– Thomas L. Root

BOP COVID Report – Update for August 10, 2021

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SO WHAT ABOUT THAT COVID VARIANT?

The Bureau of Prison’s own sometimes-controversial numbers suggest the agency is holding the COVID-19 Delta line for inmates, with 310 reported ill as of last night, up only 5.4% since a week before. The BOP has complete control over that number. But it has less control over the number of ill BOP employees – up 48% from a week before, from 157 to 233 – and the number of facilities with COVID-19 present. That number jumped from 80 to 96 joints, the highest level in four months.

Raisedead210208According to data published Sunday by the U.S. Centers for Disease Control and Prevention, 50.1% of the total U.S. population is now fully vaccinated – more than 166 million people. The US now is averaging more than 100,000 new COVID-19 cases every day, the highest in almost six months. The BOP reports 55.7% of inmates and 52.5% of staff have been vaccinated.

Two more inmate deaths were reported last week, one July 17th at Texarkana and a second, on July 28th at FMC Ft Worth. Roy Berry, who died at Ft Worth, had COVID in March but had been declared recovered by the BOP. At least 257 federal inmates have died of COVID. Due to squirrely reporting from private prisons (where reports of deceased prisoners magically disappeared from time to time), the number is certainly higher than that.

USP McCreary reported 56 sick inmates, Miami FDC 25, FCI Texarkana 25, FCI Phoenix 24, USP Yazoo City 14, FMC Butner 13; and FCI Terminal Island with 11.

NPR reported last Friday on the COVID-19 Safer Detention Act, noting that the bill – sponsored by Sens Richard Durbin (D-Illinois) and Charles Grassley (R-Iowa) – would extend compassionate release to the ever-decreasing numbers of “old law” inmates (those sentenced before 1988) still in the system.

The bill, which has passed out of the Senate Judiciary Committee and is also pending in the House, would ease COVID-19 compassionate release procedures, make permanent CARES Act home confinement, and benefit Elderly Offender Home Detention  inmates.

home190109Meanwhile, Reason magazine argued last week that the CARES Act home confinees have proven that home detention is a viable imprisonment alternative. “The overwhelming majority of those released on home detention have not reoffended. Of the 28,881 prisoners allowed on home detention last year, only 151 individuals, less than 1%, violated the terms of their confinement. Only one person has committed a new crime… In short, home detention seems to be largely successful. Most prisoners under the program have stayed out of trouble and are working to become law-abiding citizens. In doing so, they are saving taxpayers the exorbitant price of incarceration—which, on average, costs over $37,500 per year versus $13,000 per year for home confinement and monitoring.”

BOP, COVID-19 resource page (August 9, 2021)

CDC, COVID Tracker (August 8, 2021)

BOP, Inmate Death at FCI Texarkana (August 2, 2021)

BOP, Inmate Death at FMC Ft Worth (August 3, 2021)

NPR, Some Older Prisoners Aren’t Eligible For Compassionate Release. Lawmakers Want Change (August 6, 2021)

Reason, The Pandemic Showed Home Detention Works (August 6, 2021)

– Thomas L. Root

Biden Lowers the Boom on Unvaccinated Feds (Which Includes about Half of BOP Employees) – Update for August 2, 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 WHEN WE THOUGHT WE WERE DONE WITH COVID

The Delta variant of the coronavirus is gaining a foothold in the Federal Bureau of Prisons, just as it is in the rest of the country. As of yesterday, the U.S. was again charting 100,000 new cases a day. The BOP has gone from a low of 29 sick inmates three weeks ago (and only 108 staff sick a week ago), to last Friday’s numbers of 261 inmates and 151 staff down with COVID. The virus is present in 65% of all BOP facilities.

corona200313Yet only 52.5% of BOP employees and 55.3% of inmates have gotten vaccinated, according to BOP numbers. One prisoner complained last week, “Being in here with only half or less of the guards having gotten the vaccine is crazy. I feel like a trapped animal waiting for my turn to be killed.” Reuters reported last week that at FCI Oakdale – one of the first BOP facilities to suffer a COVID outbreak in March 2020 – “about 70% of its inmates have been vaccinated against the coronavirus – a rate more than double the 34% of Bureau of Prisons staffers there who have taken the shot, according to Ronald Morris, president of the Oakdale AFGE Union Local representing BOP workers.

“The low rate reflects how responses to COVID-19 – whether getting vaccinated or wearing face masks to slow transmission – has turned into a partisan issue in the United States,” Reuters reported, “with many Republicans rejecting both.”

That may be changing. Late last week, President Biden ordered all federal employees and contractors – including the BOP – to attest to their vaccination status or be subject to masking, social distancing, and COVID-19 testing requirements.

“Anyone who does not attest to being fully vaccinated will be required to wear a mask on the job no matter their geographic location, physically distance from all other employees and visitors, comply with a once- or twice-weekly screening testing requirement and be subject to restrictions on official travel,” the White House said in a fact sheet on the new policy, which it released Thursday afternoon.

Good luck enforcing that on the BOP staff.

Unconfirmed reports have at least one BOP facility announcing that by the end of the month, all unvaccinated inmates will be put in special unvaccinated units with limited recreation, no jobs, and social-distanced education. Now, it seems BOP employees are going to be feeling the effect of restrictions arising from their refusal to be vaccinated.

communications210802Meanwhile, in a master example of understatement, the Government Accountability Office last week issued a report on the BOP’s coronavirus response, complaining of inadequate COVID guidance communication to staff, and suggesting the agency should identify the practices that worked the best in order to prepare for future public health emergencies. “With about 46,000 positive inmate cases and 237 inmate deaths related to COVID-19 as of May 2021, and nearly 7,000 staff cases and four staff deaths related to COVID-19 as of May 2021, COVID-19 has highlighted key opportunities for BOP to better protect staff and inmates in response to the current pandemic and any future public health emergencies,” said GAO.

stupid160711The study said BOP staff reported confusion in how to implement BOP’s guidance. The Department of Justice’s Office of Inspector General surveyed BOP staff and reported that of the 59% of BOP employees responding to a survey thought BOP’s guidance was not clear. “Routinely evaluating how it communicates its COVID-19 guidance to staff, and modifying its approach as needed based on staff feedback, would help BOP ensure that staff can understand and effectively implement the protocols for COVID-19 and any future public health emergency,” the GAO said.

Forbes reported last week that over 400 inmates were transferred in July to FDC Miami, a facility that usually gets fewer than 100 inmates each month, many for court proceedings at the nearby federal courthouse. “The result of the inmate transfers has been 19 inmates associated with the transfer into FDC Miami have tested positive for COVID-19 and there is concern from BOP union representatives that this represents a huge challenge for both staff and inmates,” Eric Speirs, AFGE Local 501 President, told Forbes. “The decision to send this number of inmates in here over such a short period of time is reckless and adds to other pressures we already have here in Miami.”

Reuters, Vaccinated prisoners, unvaccinated guards illustrate Biden’s tricky road (July 29, 2021)

Federal News Network, Federal employees must attest to vaccination or submit to testing, per new Biden policy (July 29, 2021)

Government Executive, Coronavirus Roundup: Pandemic IG Asks for Expansion of Jurisdiction Again; GAO Looks at Contracting and Federal Prisons During COVID (July 30, 2021)

GAO, BOP Could Further Enhance its COVID-19 Response
by Capturing and Incorporating Lessons Learned (July 29, 2021)

Forbes, Bureau Of Prisons Transfers Hundreds Of Inmates Into Miami’s COVID-19 Hotbed (July 30, 2021)

– Thomas L. Root

BOP’s COVID Comeback – Update for July 30, 2021

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COVID’S BACK, AND THE BOP’S GOT IT

It wasn’t even three weeks ago that the BOP was doing a happy dance about having delivered the 200,000th shot of COVID vaccine. Only 29 inmates and 130 staff had the coronavirus, and only half of the institutions had a case.

coviddelta210730Then came the COVID-19 Delta variant. As of last night, 236 inmates and 145 staff at 79 facilities were sick. One out of four of those cases is at FCI Texarkana, where the Centers for Disease Control and Prevention is reportedly looking at why Delta has gained a foothold.

The Delta breakout comes amid increased concerns over slowed vaccination rates among prisons corrections staff.

The Crime Report last week said, “prison staff have refused the vaccine in vast numbers, leaving entire prison populations — and surrounding communities — at risk.” According to the report, only 48% of prison staff members nationwide had received at least one dose. As of last Friday, the BOP staff vax rate was 52.4%, slightly lower than the 54.8% inmate acceptance of the vaccine.

Unvaccinated officers travel between, bringing the virus with them, according to Anne Spaulding, an associate professor in epidemiology at Emory University. Sick officers can also cause staff shortages (already a serious BOP problem), which reduces programming, recreation, and visitation. “It’s going to affect the mental health of those incarcerated, who already have restricted lives,” Spaulding said.

stopvax210730Yesterday, President Biden issued a directive that requires about 2 million federal employees to disclose whether they’ve been vaccinated against COVID-19 or else submit to regular testing, as the highly transmissible Delta variant drives up new infections nationwide. That number would include the approximate 19,000 BOP employees who have so far refused the shot.

Federal workers and on-site contractors will have to attest to their vaccination status, the White House said. Those who don’t must wear masks at work regardless of their geographic location and get tested once or twice a week for Covid-19. Employees who don’t disclose being fully vaccinated also will be subject to work travel restrictions and must physically distance from colleagues and visitors, the administration said.

Given that numerous inmate reports I’ve gotten say that BOP staff widely ignore mask and distancing mandates, enforcement of this should be interesting to watch.

BOP COVID-19 statistics website (July 29)

KTBS-TV, Shreveport LA, Coronavirus cases rise at FCI Texarkana (July 19, 2021)

The Crime Report, Is Anti-Vax Movement Gaining Traction Among Corrections Staff? (July 12, 2021)

Politico, Biden rolls out aggressive plan to jump-start vaccination (July 29, 2021)

– Thomas L. Root

BOP Healthcare: No Experience Required – Update for July 7, 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 HEALTHCARE TAKES IT ON THE CHIN

The Bureau of Prisons’ healthcare system took some hits last week.

BOPkickme210707First, from the “Crime Pays – If The Victim is the BOP” department: NaphCare – a private company that boasts it offers “proactive, preventative medical and mental health care providing community-standard of care in jails and prisons” – demonstrated how to defraud the BOP without consequence. NaphCare overbilled the BOP by “submit[ing] inflated claims for evaluation and management services.” And, after stealing at least $690,000 from the BOP, not only are there no criminal prosecutions, but NaphCare’s contract continues without interruption. All it has to do is pay it back.

Try that one with the judge on your next fraud indictment.

The Dept. of Justice announced last week that it had settled a False Claims Act proceeding against NaphCare by agreeing that the company could pay back $694,000 without admitting that it had done anything wrong. The “anything wrong” was a scheme whereby its employee physicians occasionally did not indicate the type of service performed on an inmate when they completed onsite visit sheets. When that happened, a NaphCare employee would fill in a code for a more expensive medical service and bill the BOP accordingly.

The scam went something like this: the NaphCare doc treats Ira Inmate for an ingrown toenail but fails to code it on his report turned into the home office. A NaphCare staffer sees the blank, and inserts the code for “heart transplant.” NaphCare charges a bit more for heart transplants.

The government caught NaphCare pulling the grift at USP Terre Haute and USP Victorville. The settlement agreement suggests NaphCare did it elsewhere, too, and has to report other improperly-billed costs within 90 days. In other words, the $694,000 at two facilities may just be the tip of the iceberg.

As an old law partner of mine liked to say, “no thief steals only once.” Or twice, in this case.

quackdoc210707So how do you run a billing scam on the nation’s chief law enforcer? Well, when the BOP’s healthcare system run by a former correctional officer without healthcare credentials, it is apparently not that hard. The Marshall Project reported Thursday that the senior official responsible for overseeing health care, safety, and food service in all of the BOP’s 122 facilities is Michael Smith. Mr. Smith (don’t call him “Dr.”) is a community college dropout who started his career as a CO in 1997. Smith directs three national program areas: medical, environmental and safety compliance/occupational health, and food service.

“I would seriously question his understanding of science, but he was a nice guy,” said Bill Axford, union president at FMC Rochester, where Smith previously worked as an associate warden, told The Marshall Project. Axford said when he once raised concerns with Smith that radon, an odorless radioactive gas that can cause lung cancer, could pose a danger to parts of the prison, Smith initially dismissed the potential threat, telling Axford that “radon’s not real.” Axford said that on another occasion, Smith told him that sunscreen, not the sun, caused skin cancer.

Junk Science210707Union leaders, prison health care workers, and advocates for prisoners’ rights said it is troubling that the people leading the BOP Health Services Division during the COVID-19 crisis lacked medical licenses. Nearly 50,000 federal prisoners tested positive for COVID-19 as of last week, and at least 258 have died. The BOP came under fire last year from politicians and union leaders for pressuring guards to come to work sick, failing to follow its own pandemic plan, and buying knock-off N-95 masks. “They spent $3 million buying UV portals,” one official added. “They said these killed the coronavirus — but they weren’t FDA-approved.”

“This is why our agency is broken,” said Joe Rojas, a national union leader who works at FCC Coleman. “You have people who are unqualified and you have a medical pandemic, but the leadership has zero medical background.”

“A great many of the people who ever had COVID, they were never tested,” complained Dr. Homer Venters, a former chief medical officer of the New York City jail system who inspected health conditions in prisons around the country over the past year, some as a court-appointed expert. “In most prisons, it ran through these places like wildfire.”

One man housed at a low-security federal prison compared the BOP’s public data to what he was seeing inside. At least half of his unit fell ill, he said, but the Bureau’s data didn’t reflect that.

“For the first year of the COVID, they never tested anybody in my institution unless they had a fever,” an unidentified BOP prisoner told the Associated Press. “The easiest way to not have a positive at your institution is to not test anybody.”

Sitdown210707In the pandemic’s early days, the AP said last week, testing within the BOP was limited, and staff members at some prisons were told there was no need to test inmates. The DOJ Inspector General found that, at some facilities, inmates who tested positive were left in their housing units for days without being isolated.

The concern is not just academic. The highly transmissible COVID-19 Delta variant is now in every state, and is set to cause another COVID-19 surge. The Atlantic last week said, “Vaccinated people are safer than ever despite the variants. But unvaccinated people are in more danger than ever because of the variants. Even though they’ll gain some protection from the immunity of others, they also tend to cluster socially and geographically, seeding outbreaks even within highly vaccinated communities.”

COVIDvaccine201221As of last Friday, 53.5% of inmates and 52.0% of staff were vaccinated. One BOP union official, who has not taken the vaccine yet, said, “I don’t trust the agency. I’m not putting my health and safety in the hands of the BOP.” As for the unvaccinated inmates, Dr. Venters told the district court hearing litigation over FCC Lompoc that many inmates who had refused the vaccine “reported that despite having questions about the vaccine and their own health issues, these questions were not addressed during the vaccine offer or afterward… The CDC has entire toolkits and guidance documents designed to increase vaccine update, but the basic foundation of these efforts is engaging with patients… Many of these high-risk patients were initially offered the vaccine 3 or 4 months ago, and the insistence by BOP leadership that their very valid and predictable questions and concerns go unaddressed during this time significantly increases the risk of preventable death from COVID-19.”

Dept. of Justice, Prison Health Care Provider Naphcare Agrees to Settle False Claims Act Allegations (June 25, 2021)

Settlement Agreement between DOJ and NaphCare (June 25, 2021)

The Marshall Project & NBC News, Prisons Have a Health Care Issue — And It Starts at the Top, Critics Say (July 1, 2021)

Chicago Sun-Times, Despite COVID’s spread in prisons, there’s little to suggest they’ll do better next time (June 30, 2021)

The Atlantic, The 3 Simple Rules That Underscore the Danger of Delta (July 1, 2021)

Second Report of Dr. Homer Venters, Docket 239, Torres v. Milusnic, Case No 20-cv-4450 (C.D.Cal.), filed May 12, 2021

– Thomas L. Root

A Couple of Odds and Ends – Update for July 2, 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.

shorts210702WE’VE GOT THE SHORTS

COVID Numbers: The BOP reported 31 inmates and 137 staff sick with COVID as of yesterday. The virus was still in 64 institutions. As of last FridaY, the agency said 51.9% of its staff and 53.1% of inmates have been vaccinated.

As I have previously reported, no one trusts the BOP numbers.

BOP, COVID-19 Coronavirus

Judge Goes After Marshals: US District Judge Charles Kornmann (DSD) levied criminal contempt charges against three senior US Marshal officials last week arising from his demand to know whether Marshals in his courtroom have been vaccinated against COVID-19.

angryjudge190822The charges stemmed from an incident last month in which the Judge asked a deputy marshal whether she had been vaccinated. When she refused to answer, Kornmann ordered her out of his courtroom. The Marshals responded by removing three defendants awaiting a hearing from the courthouse, in what Judge Kornmann described as a “kidnapping” that disrupted the court’s work.

The US Attorney for South Dakota has refused to prosecute the criminal contempt citations. As of Wednesday, Judge Kornmann had appointed a Rapid City, South Dakota, private attorney to try the case, and the Judge had recused himself. The Judge described the contretemps as follows:

The Department of Justice, acting through the Marshal Service, has apparently adopted a public policy to the effect that DOJ policies may trump lawful federal court orders. This cannot be permitted. Despite some public confusion, this case has nothing to do with requiring anyone to be fully vaccinated.

Josh Blackman, a constitutional law professor at the South Texas College of Law Houston, wrote in the Volokh Conspiracy blog that

recusal seems like an obvious move. This judge has clearly made up his mind. The case is so personal. There is no pretense of objectivity at this point. The case is styled United States of America v. John Kilhallon, et al. But the Plaintiff is not the United States. It is a single judge who abused his discretion. Judge Kornmann makes Judge Emmet Sullivan seem reasonable by comparison.

As for me, I really don’t know who to cheer against in this one. But I am pretty sure I can identify the losers: those federal pretrial defendants sitting in local jails waiting for hearings that will be delayed by this kerfuffle.

Washington Post, Federal judge accuses three senior law enforcement officials of criminal obstruction (June 14, 2021)

Jamestown Sun, South Dakota’s acting US Attorney won’t participate in contempt of court case against US marshals (June 25, 2021)

The Volokh Conspiracy, Update from South Dakota: Judge Kornmann Appoints Special Prosecutor To Try U.S. Marshals For Contempt (June 30, 2021)

– Thomas L. Root

Will BOP Director Carvajal Be The Next One to Be Sent Home? – Update for June 29, 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.

SOME BOP HONCHOS GET EARLY RELEASE, AND CARVAJAL MAY BE NEXT

hitroad210629The Associated Press reported last Wednesday that two Federal Bureau of Prisons Regional Directors have been relieved of their posts. Senior Biden administration officials are also considering replacing Director Michael Carvajal, whom the AP describes as being “at the center” of the “beleaguered agency’s myriad crises.”

The discussions about whether to fire Carvajal are in the preliminary stages and a final decision hasn’t yet been made, AP said it had been told by two people familiar with the matter. They were not authorized to publicly discuss the internal talks and spoke on condition of anonymity.

However, AP reported, “there’s an indication that the bureau is shaking up its senior ranks following growing criticism of chronic mismanagement, blistering reports from the Justice Department’s inspector general, and a bleak financial outlook.”

shocked191024Mismanagement at the BOP? I’m shocked.

“Since the death of Jeffrey Epstein at a federal lockup in New York in August 2019,” the AP claimed, “Associated Press has exposed one crisis after another, including rampant spread of coronavirus inside prisons and a failed response to the pandemic, escapes, deaths and critically low staffing levels that have hampered responses to emergencies.”

At least two regional directors, officials in charge of institutions in the South Central and the Southeast regions are also being replaced. BOP said the two regional directors — Juan Baltazar, Jr. and J.A. Keller — are retiring and had been planning to do so. But the sudden removal apparently was not the testimonial dinner and gold watch the two had anticipated: other people familiar with the matter said that neither had planned to leave for months and were told other officials were being appointed to their jobs.

On Wednesday, AP said, the BOP announced it was appointing wardens William Lothrop and Heriberto Tellez to the regional posts. Tellez, one of the “morons” recently referred to by Senior US District Judge Colleen McMahon, is currently in charge of MDC Brooklyn, the high-rise dungeon where a 34-year-old inmate was found dead in his cell as recently as a week ago.

Carvajal took over as director in February 2020, a month before COVID-19 began galloping through all 122 of the BOP’s facilities, infecting over 48,000 inmates and killing 255.

reel210629To be sure, the Director does not have a lot of highlights on his reel.  Nearly a third of BOP correctional officer jobs are vacant, forcing the BOP to continue to use augmentation, pressing medical, educational, office, and other staff into temporary CO duty.

Some question whether the staffing shortage will prevent the agency from maintaining security and at the same time carrying out its First Step Act programming duties. Over the past 18 months, 30 prisoners have escaped from federal lockups across the U.S. — and nearly half still have not been caught. The AP said prisoners have broken out at lockups in nearly every region of the country.

The Bureau has said it expects to bring on 1,800 new employees, and that its recent hiring initiative has been “a huge success.” But the AP reports the BOP has been slow-walking its hiring process, pausing most new hires until at least October. Officers at several facilities have held protests calling for Carvajal to be fired.

Late last week, Shane Fausey, national president of the Council of Prison Locals, AFL-CIO (representing 30,000 BOP employees) told Politico, “A clear and dangerous staffing crisis in the Bureau of Prisons, as explicitly outlined in a number of OIG reports and a recent scathing report by the GAO, has pushed this agency beyond its limits. Our employees and officers continue to endure unrelenting overtime and reassignments as the budgetary shortfall is preventing the hiring of much needed Correctional Officers.”

Meanwhile, President Biden’s detailed 2022 BOP budget request does not throw the BOP a life preserver. It includes a reduction of $267 million to reflect decreases in the BOP’s inmate population — a decrease that is a result, in part, of the CARES Act and increased use of the Elderly Offenders Home Detention program.

Jail151220But it’s not just the staff shortage and cash crunch. The BOP continues to be plagued by embarrassing allegations of misconduct. Although this predates Carvajal’s administration, a loaded gun was found smuggled into MCC New York not long after Epstein committed suicide. In the last month, the DOJ Inspector General issued a report about security lapses at BOP minimum-security facilities. Last week, the family of Jamel Floyd – who died a year ago at MDC Brooklyn after being pepper-sprayed by guards (only a few months before scheduled release after 15 years) – sued the BOP.

The Floyd suit came only a few days after a suit filed in Denver by BOP employees alleged that USP Florence special operations (SORT) team members fired pepper spray, plastic bullets, and pepper balls at their unarmed, administrative colleagues during a training exercise, in “inappropriate and dangerous” training episodes. Those failings prompted the DOJ Inspector General to recommend that some of its special operations training be suspended until better safeguards could be put in place.

“We believe that staff members at the Bureau of Prisons abused their coworkers in a way that undermines, or should undermine, the faith of the public in the ability to do their jobs,” said attorney Ed Aro, who is representing four current and former Bureau of Prison employees who say they were injured and traumatized by the training.

Last week, Vanity Fair published a long piece chronicling pretrial detainee Ghislaine Maxwell’s complaints about inhumane treatment at MCC New York.

And we end with an Eastern District of Virginia federal judge last week angrily and publicly blaming the BOP for the suicide death of a presentence defendant.

angryjudge190822The man had been sent to FMC Butner – a BOP medical and psychiatric center – for a mental evaluation. He was declared competent to enter a plea and returned to a local jail. After the man pled guilty but before sentencing, Judge T.S. Ellis III again became concerned about the man’s mental health and ordered him back to FMC Butner for further care.  BOP officials refused him unless the defendant was deemed incompetent again or required a new psychiatric evaluation. So the defendant went to a local jail where he took his own life on May 18.

At a hearing on June 24, the judge excoriated the BOP for refusing to take the man and failing to provide his medical records to the local jail. “If I issue an order, you must obey it,” he told prison officials who participated in the hearing. “Nobody in the Bureau of Prisons should ever decide they don’t want to obey my order because they think it violates the law. I trump their view of the law.”

Welcome to the culture of the BOP, Your Honor.

Associated Press, AP sources: Officials mulling ousting US prisons director (June 23, 2021)

Newsweek, Trump-Appointed Bureau of Prisons Director Michael Carvajal Could Be Replaced Amid Crises (June 23, 2021)

Midnight Report, Federal Bureau of Prisons Oust Regional Directors in South Central and Southeast Regions (June 23, 2021)

Time, After His 2020 Death in a New York Jail Cell, Jamel Floyd’s Family File Lawsuit Against Bureau of Prisons (June 24, 2021)

Denver Post, Supermax special ops team used pepper spray, plastic bullets on unarmed colleagues during training exercise, lawsuit alleges (June 23, 2021)

Politico, Union boss: Bureau of Prisons faces dangerous cash crunch (June 25, 2021)

Vanity Fair, Inside Ghislaine Maxwell’s Battle With the Bureau of Prisons (June 24, 2021)

Washington Post, Judge faults federal prison system after suicide of Great Falls man (June 25, 2021)

– Thomas L. Root