Tag Archives: BOP

The Clock Chimes 13 Times for BOP COVID Response – Update for June 25, 2021

June 25, 2021 lisa-legalinfo Leave a comment

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

REMEMBER COVID? IT’S STILL AROUND IN THE BOP… AND PEOPLE ARE STILL DYING

The Bureau of Prisons reported 61 sick inmates and 136 sick staff in 65 facilities as of last night.

What is curious is that the BOP reported two more inmate COVID deaths last week.

One was from last December. With its usual opacity, the BOP reported last week that on “Friday, December 4, 2020, inmate Carlous Lindell Daily tested positive for COVID-19 at the United States Penitentiary (USP) Victorville in Victorville, California, and was immediately placed in medical isolation. On Wednesday, December 23, 2020, in accordance with Centers for Disease Control and Prevention (CDC) guidelines, Mr. Daily was considered recovered after completing isolation and presenting with no symptoms.”

[Editorial note here: The BOP always trots out the justification in notices like these that ‘we only said he was recovered because the CDC guidelines said he was recovered’. I have heard from too many inmates that ‘recovery’ consists of taking a temperature. The inmates are listed as presenting no symptoms because staff is careful not to ask the inmates about any symptoms].

To be sure, poor Mr. Daily must have been experiencing some continuing symptoms that the crack BOP medical professionals overlooked. Only five days after he was declared fit as a fiddle, “[o]n Monday, December 28, 2020, Mr. Daily experienced vomiting and an altered mental status, and while being treated, became unresponsive. Responding staff immediately initiated life-saving measures. Staff requested emergency medical services (EMS) and life-saving efforts continued. Mr. Daily was subsequently pronounced deceased by EMS personnel.”

Apparently, the Health Services staff was so crushed by losing their ‘recovered’ patient that no one got around to reporting his death for over five months.

I remember from years ago a judge patiently explaining to a greenhorn lawyer (me) about the 13th chime. The ’13th chime’ comes from the mythical case of Rex v. Haddock, recounted in book Uncommon Law by A.P. Herbert. Some have attributed it to an earlier utterance by Mark Twain. Regardless of its origin, the ’13th Chime” doctrine holds that when a clock strikes 13 times, not only is the 13th strike itself discredited, but the very fact that there was a 13th chime raises doubts about the accuracy of the preceding 12. Twain allegedly said: “The thirteenth stroke of the clock is not only false of itself, but casts grave doubt on the credibility of the preceding twelve”.

The point is this: I have heard for months from inmate correspondents that people were dying at FCI XYZ of COVID, but FCI XYZ’s reported deaths never seemed to reflect inmate folklore. Mr. Daily’s demise is the second time in three weeks that the BOP issued a way-after-the-fact admission about a death that went unreported during the height of the epidemic. How many more of these unreported deaths – which, had they been reported in a timely manner, would have made BOP conditions during the pandemic look even direr – are lurking out there? What’s more, the under-reporting is consistent with the BOP practice many prisoners have reported of medical staff doing the ostrich thing, not inquiring about symptoms other than to take a temperature?

Certainly, under-reporting would not surprise The Marshall Project, which has been criticizing BOP sleight-of-hand on case numbers for months:

The Federal Bureau of Prisons also had a policy of removing cases and deaths from its reports. As a result, by the spring of 2021, we could no longer accurately determine new cases in federal prisons, which had more people infected than any other system.

Now for the other death last week, Sherri Hillman, a pretrial detainee who died at the abattoir known as FMC Carswell, the BOP’s only women’s medical center at Fort Worth.

The circumstances around the Carswell death were painfully similar to the April death of Martha Evanoff at that facility. According to the Fort Worth Star-Telegram, Sherri had been sent to Carswell while awaiting sentencing in Kentucky, after being hospitalized with COVID since January. “She was transferred to (Carswell) in Fort Worth because most people thought she would be getting better care there than in Kentucky,” her attorney told the newspaper.

Her mother said, however, “from what she was telling me, I just don’t think she was treated right.” Two other Carswell inmates told the paper said they heard Sherri crying out for help for several days from her cell on the medical floor. One woman, who is also staying on the medical floor, said she heard the shouting.

“Everyone on the floor heard her screaming for help for several days,” a witness, who did not want her name to be used out of fear of retaliation, told the Star-Telegram, “For days, they said she’s faking it and there’s nothing wrong with her, and they ignored her cries for help. She would say, ‘Please, somebody help me.’”

Another inmate reported to me, “The poor woman begged for 4-5 days for help and was told to ‘shut up’.”

Sherri died alone in her cell on June 14.

BOP, Inmate Death at Victorville (June 17, 2021)

BOP, Inmate Death at FMC Carswell (June 17, 2021)

Fort Worth TX Star-Telegram, Woman told mother, ‘I can’t do this anymore,’ before death at prison in Fort Worth (June 17, 2021)

– Thomas L. Root

And You Thought Last Week Was Bad… – Update for June 17, 2021

June 17, 2021 lisa-legalinfo Leave a comment

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

YOU AIN’T SEEN NUTHIN’ YET

A mere nine days ago, I recounted that Bureau of Prisons Director Michael Carvajal had just ended a lousy week. Turned out it was just a dress rehearsal for what was to come.

First, last week the Dept. of Justice Inspector General issued a report criticizing the BOP’s lack of security at camps, after “multiple investigations involving prison escapes, including an investigation at the Federal Correctional Complex (FCC), SPC, Beaumont, Texas, where the escape of 4 inmates went undetected for more than 12 hours despite 3 overnight inmate counts during that period of time.” The IG conceded that the correctional officers “likely complied with BOP and FCC Beaumont policy when conducting the nighttime counts,” but cited “security concerns that enabled the inmates’ escape.”

But before inmates and their families experience too much schadenfreude, consider this: The BOP says it has tightened up on security at the Beaumont camp (including the addition of a fence, the absence of which had always been a big selling point for camps. The IG report suggests that changes being made in Beaumont camp security be applied to all BOP camps, meaning that things should be getting tighter for campers everywhere. What is it again that rolls downhill?

The report’s timing was poor, given that two weeks before, the BOP had trumpeted to Congress in a budget request that it “maintains institution security through a combination of sound correctional practices, highly trained staff, technology, and careful classification of inmates.” Oh yeah? Ask those inmates sleeping in their bunks over there… or are those just mannequins?

The IG report was followed by a Washington Post story a day later that “Federal prison inmates are keeping large sums of money — in some cases more than $100,000 each — in government-run deposit accounts effectively shielded from court orders for things like child support, alimony or other debts, and not subject to the same scrutiny as accounts owned by non-incarcerated citizens…”

This is a non-story to federal prisoners or their families, who keep Western Union afloat by paying exorbitant rates to send money into inmate trust accounts. The Post described inmate trust accounts with a breathlessness reserved for a Trump Administration expose, as though the Inmate Trust Fund program is a perk that inmates are lucky enough to have and regularly abuse. According to the story, over 20 inmate accounts hold an average of $150,000, and the combined value of all inmate accounts is over $100 million. For math whizzes, this works out to about $660.00 per inmate, not exactly a down payment on a Rolls Royce.

The problem, the Post says, is that Inmate Trust Accounts have “long frustrated and angered law enforcement officials from other agencies, who say it poses significant risks for abuse, money laundering and corruption.” The BOP, according to the paper, “has for years resisted efforts to change it because its leaders maintain they are already diligent about making inmates pay what they owe.”

A week ago today, Senate Judiciary Committee Chairman Richard Durbin (D-Illinois) expressed shock at the Post report and said he and Sen Charles Grassley (R-Iowa) would be writing to Carvajal demanding to know more about the accounts.

More stuff rolling downhill toward prisoners… Inmates now can count on the BOP being pressured by Congress to seize their money for all manner of debts other than just restitution and fines.

Finally, the US Sentencing Commission and BOP numbers released last week are not going to make Durbin and Grassley, who are both critics of the BOP’s chary approach to granting compassionate release requests, any happier with Carvajal. While the prior BOP director approved a measly 55 out of 1,735 compassionate release requests in 2019 (.03%) – Carvajal has OK’d two orders of magnitude fewer: 36 requests out of 31,000 in the 13 months since the pandemic took hold in March 2020 (0.001%).

By comparison, federal judges approved 21% of compassionate release requests they considered in 2020, according to a US Sentencing Commission report released last week.

DOJ Inspector General, Notification of Security Concerns at the Federal Bureau of Prisons Camp Locations (June 8, 2021)

Los Angeles Times, 29 prisoners have escaped from federal lockups in the last 18 months (June 11, 2021)

Washington Post, Federal prisoners hold $100 million in government-run accounts, shielded from some criminal scrutiny and debt collection (June 9, 2021)

Government Executive, Budget Request for Federal Prisons Agency Isn’t Enough, Union Says (June 9, 2021)

US Sentencing Commission, Compassionate Release Data Report – 2020 (June 10, 2021)

Law360.com, Fed. Prisoners See Limited Success In Pandemic Release Bids (June 11, 2021)

– Thomas L. Root

“Did We Nail That Pandemic, Or What?” – Update for May 6, 2021

May 6, 2021 lisa-legalinfo Leave a comment

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

TELL US HOW WE’RE DOING

The Dept of Justice Office of Inspector General announced last week that it would be conducting a second survey of BOP staff and a first survey of inmates to determine how well the BOP performed during the pandemic.

The results of the surveys should be illuminating.

And how are things now? As of last Friday, the BOP said it has given two doses of vaccine to about 35% of all inmates, and about 49% of staff. About 126 inmates are sick with COVID-19, and 164staff, with COVID still present in 67% of facilities, if BOP numbers can be believed.

But can the numbers be believed? The Marshall Project and Associated Press, which jointly have been tracking how many people are being sickened and killed by COVID-19 in prisons across the country and within each state since March 2020, have given up on BOP numbers, warning that “our understanding of the full toll of the pandemic on incarcerated people is limited by the Federal Bureau of Prisons’ policy of removing cases and deaths from its reports in recent months. As a result, we cannot accurately determine new cases or deaths in federal prisons, which have had more people infected than any other system.”

Another federal inmate died of COVID last week, this one at FMC Devens. Paul Archambault contracted COVID-19 at the end of December but was declared “recovered” ten days later. The “recovery” label appears to have benefited record-keeping more than Mr. Archambault. Like a number of others before him, he died of the COVID-19 from which he had recovered.

In New York last week, U.S. District Judge Katherine Polk Failla granted compassionate release to an inmate at MCC Manhattan, ruling that a key part of her sentence was addiction treatment and care for other ailments. The judge said the BOP hasn’t provided it to the inmate, who was serving a sentence for a cocaine conspiracy.

“Due to the extreme lockdown conditions at the [Metropolitan Correctional Center] and [Metropolitan Detention Center], the inmate has been unable to receive mental health care, drug abuse treatment, and other important services that the Court envisioned her receiving while incarcerated,” the judge wrote. “The Court believes these services to be critical to her physical and mental health, and to her ability to reenter society as a productive and law-abiding citizen.”

DOJ Inspector General, Surveys of BOP Federal Prison Staff and Inmates (April 28, 2021)

The Marshall Project, A State-by-State Look at Coronavirus in Prisons (April 30, 2021)

BOP, Inmate Death at FMC Devens (April 29, 2021)

New York Daily News, Judge, inmate slam conditions at NYC federal jails in pandemic’s 13th month (April 26, 2021)

– Thomas L. Root

BOP’s Secret Home Confinement Memo Sows Confusion – Update for April 26, 2021

April 26, 2021 lisa-legalinfo Leave a comment

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

DUELING HOME CONFINEMENT MEMOS DRAW CRITICISM

A week ago, I wrote about a new Bureau of Prisons memo (which some said was really a Dept of Justice memo) expanding eligibility for CARES Act home confinement. I admitted that despite my efforts, I could not obtain a copy of it.

I’m not alone. FAMM was scrambling, inmates were scrambling, and even Ohio State University law professor Doug Berman, the dean of federal sentencing law if there ever was one, complained in his Sentencing Law and Policy blog last Tuesday that the memo has still not been released. That same day, Keri Blakinger of The Marshall Project released what purported to be the text of the memo, a well-meant but ultimately unhelpful post.

Meanwhile, my email was smoking. Inmates heard that the BOP had been told to send minimum-security inmates home even if they had not served half of their sentence, the standard that people with prior offenses of violence were excluded had been dropped… the institutions were rife with rumors. People complained that their case managers were stubbornly ignoring the new standards, that wardens were releasing internal memos that underpromised.

You remember the game “post office.” The message was whispered around the circle of kids until it returned to the source mangled beyond recognition. That’s what we had. And the blame can be laid at the bureaucratic feet of the Bureau of Prisons, which would classify road signs as “sensitive” and “FOIA exempt” if the agency could get away with it.

Thankfully, Washington, D.C., leaks like a screen door on a submarine. By Then, on Thursday, both FAMM and the Defenders Services Office of the Administrative Office of U.S. Court (the support agency for Federal Public Defenders nationwide) had obtained bootlegged copies of the memo – an April 13 release from Andre Mateviousian, Assistant Director of the Correctional Services Division, BOP – and posted them on the Internet. These posts, which are identical, appear to be the real deal.

So what changed? A couple of things. First, inmates with -300 and -400 series disciplinary reports shots in the last 12 months are not automatically disqualified. Second, inmates with “low” PATTERN scores are now eligible for CARES Act home confinement.

What didn’t change? At least a couple of things. First, if you have a prior conviction for a crime of violence (let’s say a bar fight back in 1985, when you were 21 years old and possessed a testosterone-addled brain), you are still disqualified from CARES Act home confinement (no matter that you’re doing 24 months for tearing the label off your mattress). Second, the BOP is adhering to its self-imposed standard that you have to have completed 50% of your sentence (or 25% of your sentence with less than 18 months to go).

So the Marshall Project text was wrong: prior violence still counts. The versions of the memo posted by FAMM and fd.org continue to say that “the inmate’s current or a prior offense” cannot be “violent, a sex offense, or terrorism-related.”

At the end of last week. FAMM President Kevin Ring wrote to the BOP complaining about its failure to officially release the memo. “I am writing to ask that you publish on the Bureau of Prisons’ (BOP) website any and all memos sent to wardens about the eligibility criteria for CARES Act home confinement,” Ring wrote. “The BOP’s failure to do so has created unnecessary confusion and frustration for incarcerated people and their families…”

There is not a bureaucratic reason on God’s green earth why the BOP could not have released the memorandum on April 13, 2021. Instead, the agency’s obsession with secrecy (or at least playing its cards close to the vest) generated a week’s worth of heat without light. In fact, if the memo had not been leaked to outside organizations, inmates would still be in a tizzy and families still confused.

While I am on a rant, I should note the moment in BOP Director Michael Carvajal’s testimony two weeks ago before the Senate Judiciary Committee that made me shout “liar!” at my computer screen. That in turn caused my faithful and efficient office dog Winnie to cower under a table until I calmed down.

As I note, the new memorandum retains the 50%-of-sentence requirement. This is a standard that Attorney General William Barr never imposed. Instead, as you may remember, it was the BOP’s own fiat, added in the agency’s all-too-typical ham-handed way (with inmates who were literally walking out the door to return home being called back because of the new requirement).

When I heard Carvajal assure the Senators that all the BOP had done was to apply the AG’s home confinement criteria, I was disgusted at his prevarication and furious that the Senators were so ill-prepared by their staffs that no one called Carvajal out on the fib.

In Forbes last week, Walter Pavlo noted it as well. He too observed that the time-served requirement was not dictated by the Attorney General, but rather was

based on an internal BOP memorandum that stated it was screening inmates based on whether they had served 25% of their sentence with less than 18 months remaining or have served more than 50% of their sentence. The directive had little logic behind it because COVID-19 did not discriminate between those who had been in prison years or those who had just arrived. The result of the memorandum was devastating, leading to deaths and infections at everyone of the BOP facilities nationwide.

Testifying before the Senate Judiciary Committee two weeks ago, BOP Director Michael Carvajal said that “…any inmate that is eligible under the criteria presented to me by the Attorney General is on home confinement as we speak.” Pavlo called that misleading, noting that “what Carvajal failed to add were details of the internal memos that mandated that priority for a person’s transfer to home confinement be measured against the amount of time they had served…”

Carvajal’s statement was false then, and it is false now.

Sentencing Law and Policy, Why is DOJ apparently keeping hidden a new memo expanding the criteria for home confinement? (April 20, 2021)

The Marshall Project, Document Cloud, Home Confinement Memo (April 20, 2021)

FAMM, BOP Home Confinement Memorandum of April 13, 2021 (posted April 21, 2021)

Federal Public Defender, BOP Home Confinement Memorandum of April 13, 2021 (posted April 21, 2021)

Sentencing Law and Policy, FAMM urges federal BOP to publish memos with home confinement criteria (April 23, 2021)

Forbes, Bureau of Prisons Director Testimony To Senate Judiciary Leaves Unanswered Questions (April 20, 2021)

– Thomas L. Root

The Week in COVID – Update for April 22, 2021

April 22, 2021 lisa-legalinfo Leave a comment

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

COVID BY THE (DIMINISHING) NUMBERS

The number of BOP staff with COVID fell dramatically last week from 1,254 to 252, but the spike now sweeping the country showed up among BOP prisoners, with the numbers increasing from 208 a week ago Monday to 408 two days ago, only to drop back to 336 as of today. The BOP says that COVID is still present in 82 facilities, but that is down from 115 a week before.

BOP Director Michael Carvajal told the Senate Judiciary Committee that all BOP staff had been offered the vaccine, and 51% had taken it. He said 66% of inmates offered the vaccine had taken it. The BOP reported 40,808 inmates have been vaccinated as of last Friday (26.8%), up from 23.04% a week ago, The number suggests that the vaccine has been offered to about 61,800 inmates so far. Carvajal said all inmates would be offered the vaccine by the end of May.

The “pause” in administering the Johnson & Johnson vaccine last week because of two reports of a rare blood disorder is expected to be lifted in the next few days. While Dr. Anthony Fauci has said that the pause should be viewed as a “testimony to how seriously we take safety,” some experts are worried that the pause could lead to increased vaccine hesitancy, particularly in vulnerable populations that might be less likely to trust medical institutions in the first place, such as prisons.

“Vaccine confidence tends to be lower amongst people who have been disenfranchised,” Dr. Wafaa El-Sadr, a Columbia University professor of epidemiology and medicine told ABC News. “Among incarcerated people, that hesitancy may be tied to a historical legacy of doctors experimenting on people in prison.”

At last week’s BOP oversight hearing, Judiciary Committee members expressed concern about the low vaccine acceptance rate among BOP staff. Sen Amy Klobuchar (D-Minnesota) noted that “95% of Mayo clinic doctors have been vaccinated because they don’t want to give it to their patients.” She wondered why BOP staffers were not similarly motivated to protect inmates by getting vaccinated.

ABC News, Prisons postpone vaccinations with Johnson & Johnson shots paused (April 16, 2021)

– Thomas L. Root

Odd Couple Beat Up on Prison Head – Update for April 20, 2021

April 20, 2021 lisa-legalinfo Leave a comment

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

SENATORS UNHAPPY OVER FIRST STEP IMPLEMENTATIONS

Last Thursday’s Senate Judiciary Committee Oversight hearing opened with Committee chair Richard Durbin (D-Illinois) and Ranking Member Charles Grassley (R-Iowa) both blasting the BOP not just for its failures in placing inmates in home confinement, but for the PATTERN recidivism tool – which Durbin called “deeply flawed” – and for what they see as BOP slow-walking implementation of First Step Act programming.

Durbin complained that PATTERN contained “stunning racial disparity in inmate classification, and that the BOP’s proposed rule for awarding earned time credit – which requires 240 actual hours of programs for one month’s credit – “severely limits the ability to earn these credits, and that undermines participation.”

“Our prison system at the federal level is failing,” Durbin said in his opening remarks, “failing to fulfill its fundamental purpose, the rehabilitation of incarcerated individuals.”

Grassley said he was “disheartened with the lackluster implementation of the First Step Act. “The DOJ and Bureau of Prisons are implementing the First Step Act as if they want it to fail. I hope this is not true but actions speak louder than words.”

BOP Director Michael Carvajal said that COVID had hampered full rollout of the programming inmates could complete for earned credits that reduced their sentences, but Grassley responded, “I don’t think that national emergency can be used as a scapegoat… It seems like the Justice Department and the Bureau of Prisons have failed in this effort… Even if it isn’t so, at some point it becomes a perception, and perceptions become a reality.”

Carvajal told the Committee that about 50% of the 125,000 inmates reviewed were eligible to take programming for earned time credits. He told the Committee that last year, “even through COVID, we had over 25,000 inmates complete a program for time credit.”

This was a surprising admission, in my view. In litigation, the BOP has argued that its obligation to implement the evidence-based reduction programs and award Earned Time credits will not take effect until January 2022. That position – already rejected by several courts – seems to be undercut by Carvajal’s statement to lawmakers that 25,000 inmates got some ETC credit during 2020.

Senate Judiciary Committee, Oversight of the Bureau of Prisons (April 15, 2021)

Goodman v. Ortiz, Case No 20-7582, 2020 US Dist LEXIS 153874 (DNJ Aug 25, 2020)

– Thomas L. Root

Judiciary Committee Exercised Over Home Confinees Returning to Prison – Update for April 16, 2021

April 16, 2021 lisa-legalinfo Leave a comment

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

LOBBYING EFFORT ON CARES ACT HOME CONFINEMENT MAY BE BEARING FRUIT

FAMM started to turn up the heat last week on an effort to get President Joe Biden and Attorney General Merrick Garland to rescind the January 15 memo from DOJ’s Office of Legal Counsel that would lead to the return of people now on home confinement under CARES Act placement to federal prison when the pandemic ends.

The memo was a prime topic yesterday when Bureau of Prisons Director Michael Carvajal testified before the Senate Judiciary Committee. Judging from the questions coming from both Republicans and Democrats on the Senate Judiciary Committee (with the exception of the execrable Sen. Tom Cotton [R-Klingon Empire] and Sen. Josh Hawley [R-Mongol Horde]), the FAMM campaign is bearing fruit.

The OLC memo, issued in the final days of the Trump administration, would force the BOP to send several thousand people currently on home confinement. Carvajal said it would probably affect somewhere around 2,500 people now on home confinement with a year or more to go on their sentences. A few more than 300 have lengthy sentences left. Of the group, he said 21 have been returned to BOP custody, but only two of those were because of new criminal conduct.

The memo is incorrect as a matter of law and would impose devastating human costs, as well as a negative impact on public safety. Sen. Richard Durbin (D-Illinois), chair of the Committee, said yesterday he was writing to Garland to urge him to reconsider his predecessor’s opinion.

FAMM and 28 other advocacy groups sent a letter to Biden and Garland on April 1st. FAMM has launched the “Keep Them Home” campaign, and is both collecting signatures on a petition and calling on people to call Garland’s office in order to get the Administration to rescind the memo.

FAMM president Kevin Ring told The Appeal that those who were released did not expect to have to return to prison. “These folks came home and were told, ‘You’re not going to have to come back,’” Ring said. “They reunited with their families. Some of them have kids who they said, ‘I’m home.’ They said, ‘Do you have to go back, Dad?’ ‘No.’ So this changes everything.”

Earlier, the BOP declined to answer reporters’ questions about the memo, but Joe Rojas, Southeast Regional Vice President of the union representing BOP employees, said sending everyone back to prison would be logistically impossible. “We have no staff,” he told The Sentinel, “We are already in chaos as it is.”

But yesterday, Carvajal said that the BOP has ample space to absorb the home confinees if they were to return. Nevertheless, he expressed no opinion on whether they should come back. The Director noted that the issue is not immediate, because the pandemic emergency has been extended by the President.

My take on Carvajal’s position (for what it’s worth) is that his bias leans toward leaving people who have complied with their home confinement terms at home. He said repeatedly that the BOP’s mission was to successfully return people to the committee, and as long as home confinees are successful at home, there was nothing wrong with leaving them there.

However, Carvajal said that the BOP’s primary interest was to follow the law, and he urged lawmakers to amend the home confinement statute to make clear what should be done.

The Appeal, Unless The Biden Administration Acts, Thousands Could Go Back To Federal Prison (April 5, 2021)

FAMM Petition

KSU The Sentinel, Inmates under house arrest in the event of a pandemic could return to prisons in the United States (April 11, 2021)

Senate Judiciary Committee, Oversight Hearing on Bureau of Prisons (April 15, 2021)

– Thomas L. Root

Thursday is Hamburger Day – Update for April 12, 2021

April 12, 2021 lisa-legalinfo Leave a comment

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

BOP DIRECTOR TO BE GRILLED ABOUT COVID, FIRST STEP

Almost every inmate in the Bureau of Prisons system looks forward to Wednesdays, when the nationwide lunch menu serves sandwiches that pass for hamburgers, with a side of fries. But this week, BOP Director Michael Carvajal’s hamburger day may come one day later.

Carvajal will testify this Thursday before the full Senate Judiciary Committee in the first comprehensive BOP oversight hearing since 2019. Politico said last week that principal issues will include how BOP has handled the coronavirus pandemic and how it has implemented the First Step Act. “On both counts,” Politico reported, “the Bureau has drawn bipartisan criticism.”

A BOP statement last week said Director Carvajal “is looking forward to the opportunity to provide the Senate Judiciary Committee with information at the upcoming Oversight of the Federal Bureau of Prisons hearing on the morning of April 15, 2021.” Yeah, I have no doubt of that… like a dental patient eagerly anticipates a root canal without Novocain.

At the hearing, Carvajal will face Sen. Richard Durbin (D-Illinois) — now the committee chair — former chairman Charles Grassley (R-Iowa), Patrick Leahy (D-Vermont), John Cornyn (R-Texas), Cory Booker (D-New Jersey and Mike Lee (R-Utah), among others. Durbin, Grassley, Leahy, and Lee have been vigorous in their demands that the BOP should do more to move the most vulnerable inmates out of prison because of COVID-19. And Booker is a co-sponsor of the Federal Correctional Facilities COVID-19 Response Act, introduced two months ago to address inadequacies in the BOP’s management of the pandemic. “The Department of Justice’ response to the COVID-19 pandemic has been unacceptable and has placed nearly 2.3 million incarcerated people in danger,” Booker said at the time.

What will the Committee ask Carvajal? Well, it could start with the Director’s past statements about the BOP’s “transparency” on COVID. Carvajal told a House subcommittee in December that “the Bureau has published one of the most detailed and thorough COVID pandemic resource areas in the federal government on our public website at www.bop.gov/coronavirus.”

Is that a fact, Mr. Director? Sure, since April 2020, the BOP has provided a running total of the number of inmates who tested positive for COVID. But two months ago, the total mysteriously started going down. I initially thought that Steven Hawking had been right that the universe may someday contract: maybe it has begun, and time is moving backward. But that was not the case. Instead, the BOP had adopted the view is that if an inmate contracted COVID but thereafter was released, it should be treated as though he or she had never been there. Because the inmate had never been there, then his or her COVID case could not count against the BOP’s total.

Accounting brilliance, Mr. Director! But don’t be surprised if some on the Committee might be so forward-thinking, number-wise, and wonder whether – with enough time – the Bureau’s total number of historic COVID cases might regress to zero.

What’s more, the Bureau’s loose use of the definition of “recovered” might raise Committee doubts. Last week, the BOP announced that two more “recovered” inmates, both at the Springfield, Missouri, Medical Center for Federal Inmates, had died. One, Leonard Williams, contracted COVID in late February, but “on Monday, March 22, 2021,” the BOP said, “in accordance with Centers for Disease Control and Prevention (CDC) guidelines, Mr. Williams was converted to a status of recovered following the completion of medical isolation and presenting with no symptoms. On Saturday, April 3, 2021, Mr. Williams became unresponsive.” He was pretty unresponsive, all right. The EMT crew pronounced him dead before he got to the hospital.

Another inmate, Jaime Benavides, caught COVID in December but was declared “recovered” 10 days later. But “on Thursday, March 25, 2021, Mr. Benavides’ condition worsened and he was transported to a local hospital for further treatment and evaluation.” Committee members may how a “recovered” person’s condition can worsen. After all, he had “recovered!” Mr. Benavides died of his recovery on April 4.

The Marshall Project has been reporting a tally of COVID in federal and state prisons every Friday for over a year. Last Friday, it informed readers that its

data no longer includes new cases from the Federal Bureau of Prisons, which has had more prisoners infected than any other system. In early March, the bureau’s totals began to drop because they removed cases of anyone who was released, a spokesman said. Similarly, in early April, the Bureau of Prisons lowered the number of deaths it was reporting among people held in private prisons. As a result, we cannot accurately determine new infections or deaths in federal prisons.

The New York Times noted last week in a report on COVID in prisons that its data were not complete because “the federal prison system and ICE did not regularly provide facility-level data for inmate infections or disclose the number of tests conducted on inmates or correctional staff members.”

Maybe the Committee will ask Carvajal about the BOP’s abysmal staff vaccination rate. Last week, the Federal News Network reported on a number of government agencies whose frontline workers were having trouble accessing vaccines. But, FNN said, “the Bureau of Prisons in the Justice Department is having the opposite problem. BOP says it offered the COVID-19 vaccine to all of its employees, but only 49% took the agency up on its offer. BOP says it can’t require employees to take the vaccine since the Food and Drug Administration hasn’t formally approved them yet.”

As of last Friday, the BOP reported only a very questionable 208 inmate COVID cases, but 1,250 sick staff, a number unchanged in the last two weeks. Committee members might justifiably wonder why the inmate number – which the BOP controls – has dropped so dramatically, while the staff number – which the BOP cannot control – remains so high.

Perhaps the Committee will want to know why the BOP touts that it had put 125,000 shots into arms as of last Friday, yet it reports only 23% of the inmate population has been vaccinated.

But it may just be that the Committee will be interested in some stats The New York Times ran in last week’s COVID in prisons story: Worldwide, two people out of 100 caught COVID. In the US, nine people out of 100 caught COVID. In the BOP, 39 out of 100 prisoners, although the “true count is most likely higher because of a dearth of testing.”

There’s more than Monday-morning quarterbacking to this hearing. The pandemic is not quite done. Researchers are warning that if the B.1.1.7 variant, which is more contagious, becomes more dominant, the nation could experience another peak in cases this summer that may be worse than the January peak.

It is likely that Thursday will be hamburger day for the Director. After all, Politico says he will be “grilled.”

Senate Judiciary Committee Calendar, Oversight of the Federal Bureau of Prisons

Politico, Prison chief to face congressional grilling (April 9, 2021)

S.328, Federal Correctional Facilities COVID–19 Response Act

DOJ, Statement of Michael D. Carvajal, Director Federal Bureau of Prisons (December 2, 2020)

BOP Press Release, Inmate Death at MCFP Springfield (April 7, 2021)

BOP Press Release No. 2, Inmate Death at MCFP Springfield (April 7, 2021)

The Marshall Project, A State-by-State Look at Coronavirus in Prisons (April 9, 2021)

FNN, Frontline feds facing inconsistent access to COVID vaccines (April 6, 2021)

The New York Times, Incarcerated and Infected: How the Virus Tore Through the US Prison System (April 10, 2021)

Insidenova, Spread of new COVID-19 variant may cause another peak in cases this summer, UVa researchers say (April 4, 2021)

– Thomas L. Root

Can You Hear Me (and My Lawyer) Now? – Update for April 9, 2021

April 9, 2021 lisa-legalinfo Leave a comment

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

NPR REPORTS ON PUSH FOR ATTORNEY-CLIENT PRIVILEGE IN BOP EMAIL

NPR reported last week on congressional efforts to protect inmate email to lawyers from BOP snooping.

In February, the House of Representatives approved the Effective Assistance of Counsel in the Digital Era Act by a vote of 414 to 11. The bill, now referred to the Senate Committee on Crime, Terrorism, and Homeland Security, would require the BOP to refrain from monitoring the contents of emails between inmates and their lawyers without a warrant.

The bill’s sponsor, Rep. Hakeem Jeffries (D-New York), said the vote garnered a large bipartisan majority at a time when lawmakers don’t agree on much.

The Congressional Budget Office predicted that if the legislation passed the Senate, the Federal Bureau of Prisons would have to build a new email system and create a registry of approved lawyers — measures it expects could cost $52 million through 2025.

A BOP spokesman told NPR that inmates and their contacts who use the email system “voluntarily consent to having all system activity monitored and retained.” He said that prisoners and their lawyers can communicate through phone, letters, or visits, which he said are not monitored by staff.

NPR, When It Comes To Email, Some Prisoners Say Attorney-Client Privilege Has Been Erased (March 31, 2021)

H.R. 546, Effective Assistance of Counsel in the Digital Era Act

– Thomas L. Root

BOP Cooks Books, Congress Stirs Pot – Update for April 6, 2021

April 6, 2021 lisa-legalinfo Leave a comment

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

BOP COOKING THE COVID BOOKS, ACLU SAYS

White-collar crime inmates could learn something about slick accounting from the BOP.

Up until five weeks ago, the BOP reported the total number of inmates who had tested positive for COVID-19, adding to the tally daily as new cases arose. As I reported last week, since February 24, the BOP has been changing the number daily by not just adding new cases, but by subtracting inmates who had tested positive in the past but who were no longer in custody. This accounting legerdemain has let the BOP understate the number of inmate cases by at least 1,115 through the end of March, which has reduced the positivity rate by a point, from 43.77% (had those inmates remained on the rolls) to 42.75% without them.

The Marshall Project reported the trickery last week, noting its weekly COVID prison “data no longer includes new cases from the Federal Bureau of Prisons, which has had more prisoners infected than any other system. In early March, the bureau’s totals began to drop because they removed cases of anyone who was released, a spokesman said. As a result, we cannot accurately determine new infections in federal prisons.”

The ACLU and other prison watchdog groups contend the BOP’s testing procedures are inadequate. According to the Riverfront Times, Sharon Dolovich, the director of the UCLA Law COVID-19 Behind Bars Data Project, said, “We know that those are under-counts because there are many facilities that are reporting zero, or under ten or under twenty infections,” Dolovich says. “And both because of what we know from COVID, and from what we’ve seen in countless facilities a year into the pandemic, we know that if you’re a prison with twenty infections, you have many more than twenty people who are infected.”

Maria Morris, director of the ACLU’s National Prison Project, said that BOP officials are motivated to under-test and therefore to under-count infections. “And then they can say COVID isn’t a problem in our facilities. ‘Look at how low our numbers are,'” she told the Riverfront Times.

A BOP spokesperson responded that BOP employees work closely with local health departments to ensure priority testing is provided to staff who are in close contact with COVID-19-positive personnel, while the federal prison agency has obtained a national contract to perform all staff testing.

“Whatever policies they have on paper aren’t actually being implemented,” Dolovich replied. “So they could tell you things that actually sound good in theory. But when you actually talk to people incarcerated in the various facilities, they will tell you that the reality is very different.”

Even before the BOP’s latest numbers game, Senators Elizabeth Warren (D-Massachusetts) and Cory Booker (D-New Jersey) reintroduced the Federal Correctional Facilities COVID-19 Response Act (S.328 in the Senate) to address inadequacies in the BOP’s COVID response.

The legislation would require correctional facilities to begin providing free, weekly COVID-19 testing and vaccines to both the incarcerated and their employees and assure that they offer free medical care to those who test positive for it. Oversight would include requiring these facilities to submit weekly testing data to the Department of Justice, the Centers for Disease Control and Prevention (CDC), and state public health officials. CDC officials would be dispatched to sites where outbreaks emerged within 72 hours.

“The Department of Justice’s response to the COVID-19 pandemic has been unacceptable and has placed nearly 2.3 million incarcerated people in danger,” Booker said. “It is well known that people in prison and jail tend to have much higher rates of underlying health issues than the general public, and the conditions of confinement make social distancing virtually impossible. As a result, people in prison and jail are disproportionately contracting and dying of COVID-19.”

The BOP ended yesterday claiming only 371 sick inmates. The number of sick staff, however, remains stubbornly at about where it was a week before, 1,268. COVID is still present in 116 facilities. While the BOP claims generally to have delivered 110,489 shots in arms, its detailed listing as of last Friday reveals only 19.2% of the inmate population has been vaccinated.

The Marshall Project, A State-by-State Look at Coronavirus in Prisons (April 2, 2021)

The Riverfront Times, Why Did a St. Louis Man Die in a Federal Prison Coronavirus Hotspot? (March 24, 2021)

Homeland Preparedness News, Legislation to provide greater oversight of federal prisons’ COVID-19 efforts reintroduced to Congress (April 5, 2021)

S.328, Federal Correctional Facilities COVID–19 Response Act

– Thomas L. Root

Legal Information Services Associates LLC

Tag Archives: BOP

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Thursday is Hamburger Day – Update for April 12, 2021

BOP DIRECTOR TO BE GRILLED ABOUT COVID, FIRST STEP

Can You Hear Me (and My Lawyer) Now? – Update for April 9, 2021

NPR REPORTS ON PUSH FOR ATTORNEY-CLIENT PRIVILEGE IN BOP EMAIL

BOP Cooks Books, Congress Stirs Pot – Update for April 6, 2021

BOP COOKING THE COVID BOOKS, ACLU SAYS

Research, Strategy, Tactics and Support for Lawyers