Tag Archives: BOP

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

Opening the First Step Money Spigot – Update for February 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.

MONEY, THAT’S WHAT I WANT…

Moneyspigot200220
One of the big questions left unanswered when the First Step Act passed was where the money would come from to pay for all of the ambitious programs to reduce recidivism..

Last week, the Trump administration addressed the question, proposing big budget increases for First Step implementation in 2021. A budget summary sent to Congress last week reports the administration will seek $409 million for First Step, a large increase over the $319 million provided this year.

Included are what the White House called “major new investments” in programming, halfway houses and additional Bureau of Prisons First Step staff.

Line items include an extra $244 million for halfway houses, supporting an increase in the total available beds – to meet First Step’s promise of extra halfway house time for earned-time credits –  from 14,000 to about 23,000; $37 million for expansion of the Medication-Assisted Treatment pilot program, which combines behavioral therapy and medication to treat inmates with opioid use disorder, to all BOP facilities; $23 million for increased inmate access to evidence-based, recidivism-reduction programs and to and add new programs as they are identified and evaluated; and $15 million for extra First Step implementation staff.

The budget builds on the $90 million provided in 2020 to support First Step implementation.

moneyhum170419Ohio State University law professor Doug Berman said in his Sentencing Law and Policy blog last week that “though these budget proposals still might fall short of what is needed for full, effective implementation of the First Step Act (e.g., I think Recidivism-Reduction Programs needs a lot more money), this strikes me as a serious effort to put serious money behind the Act (especially with the RRC expansion).”

Unfortunately, a White House proposed budget never survives Congress in anything approaching its initial form, and often never passes at all. As for the FY2021 budget, Steve Ellis, president of Taxpayers for Common Sense, snorted, “You might call a president’s budget aspirational. In a less charitable way, it’s really delusional.”

The Crime Report, First Step Act Funding Hiked to $409M in Trump Budget Plan (Feb 11)

Sentencing Law and Policy, Notable numbers in “Criminal Justice Reform” fact sheet highlighting part of Prez Trump’s proposed budget (Feb 10)

The White House, Criminal Justice Reform fact sheet (Feb 9)

– Thomas L. Root

Scam-a-lot: An Oak Falls In The Forest, And Makes A Noise – Update for February 5, 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 MIGHTY OAK HAS FALLEN

oaks200206Hey, all you inmates who signed up in a fevered rush for the Oaks of Justice home release program last year? The one with the fancy satellite monitor? How’s that working out for you?

Remember Oaks of Justice, the outfit run by the woman with many names, who was all the buzz on federal prison compounds last year? A year ago, Oaks was mere days away from springing the first of 1,200 inmates from institutions to home confinement and lawful employment. The nonprofit was noodling with White House officials and Bureau of Prisons bigwigs on kick-starting the program, and inmates were lined up like the commissary when a new Honeybun shipment arrives.

honeybun200206Oaks of Justice had a great shtick: after I talked to Oaks “founder” Joanne Morgan, she had me convinced that the sun rose in the west and set in the east. Her “experts” were fine-tuning the satellite tracking system, which worked in some mysterious way Joanne could not quite explain, and bureaucratic roadblocks were being swept away by White House confederates of Jared Kushner. Sure I thought her website had been put together by 5th graders on a budget, but she said Oaks wanted to spend its money on developing the program, not bells and whistles. And sure I could not quite figure out how the smart watch trackers could communicate with satellites, but Joanne explained Oaks had a scientist who had put it all together. And sure I could not find any statutory authority for what Oaks was planning to do, but Joanne assured me that that was because I had insufficient imagination.

Well, the mighty Oak has fallen… and crushed inmate hopes like a tree trunk hitting a cheap car. Inmates about to depart prison last April are still sitting on the bunks, possessions stuffed into mesh laundry bags awaiting that call to the front gate. And last week, The Marshall Project, a nonprofit focused on criminal justice, ran a lengthy piece by investigative reporter Christine Thompson putting a chainsaw to the mighty Oaks.

It sounded like a good deal for everyone involved,” Thompson wrote. “Participants would return to their families while the federal government would save “billions” on incarceration. Morgan has claimed in emails and phone calls with potential customers that officials with the Federal Bureau of Prisons and President Donald Trump himself support the program.

But attorneys familiar with the federal prison system and a former bureau official said, based on their years of knowledge and experience, that a program of this kind would never happen. A spokesperson for the Bureau of Prisons confirmed in an email to The Marshall Project that the agency has no such deal with the company. And a reverse Google image search shows the photos of the company’s “proprietary” new tracking devices appear to be consumer GPS devices from the Chinese e-commerce site Ali Express, marketed to help monitor confused elderly people or teenage children.

satellitetrack200203Thompson noted that “Morgan — whose real name, according to court records, is Winnie Joanne Barefoot — insisted that the company was legitimate and was nearing approval from the Justice Department but that she could not provide proof.” As the LISA Newsletter of March 11, 2019, reported, “‘We have gotten the go-ahead from the White House’ for the program, Morgan said last Friday, ‘and we are waiting for acceptance of our protocols by BOP.’ Morgan expects BOP approval this week, and the first group of 600 prisoners to enter the program in March. She said two additional groups of 1,000 participants each should enter the program by the end of May.”

By the way, Ms. Barefoot was released from federal prison in 2016 after a stint for banks fraud, but if anyone believes in second chances, I do, and I hardly judge her for that. As for the ever-changing names, I like to call myself “The Potentate of Post-Conviction,” but I don’t introduce myself that way. Like everything else about Oaks, Ms. Winnie Joanne Morgan Barefoot’s bell rang slightly off key.

So what was the scam?  That is what still puzzles people. Each applicant was to pay a $250.00 application fee, but Oaks reportedly told people to wait until the company had BOP and White House approvals. Once the program started, inmates and their families would have to cough up thousands of dollars to participate in the program, but that was disclosed ahead of time, and those sums would be paid when the inmate entered the program. So while Oaks is phony, no one is quite sure what the point of the swindle was, or even for sure that it was a swindle.

oak200206Nevertheless, Oaks crushed a lot of inmate hopes. Thompson told the story of female inmate with the last name Wallace, who had signed up with Oaks and was waiting… and waiting. “‘Prison is like a trial run of death,’ Wallace’s sister told Thompson. ‘You’re still breathing, you’re still getting up, but you have zero decisions about yourself. You have nothing… To have someone promising and promising and never come through—what can I believe?'”

The Marshall Project, Trade Your Prison Sentence for a Smartwatch? – Another dubious get-out-early offer is spreading through federal prisons. Lawyers say it’s a fake (Jan 28)

LISA Newsletter, Oaks of Justice – Forget We Ever Said That (March 11, 2019)

– Thomas L. Root

BOP Issues Earned Time Credit Program List – Update for January 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.

BOP ROLLS OUT FINAL PIECE OF FIRST STEP ACT

teeth200120For those who have been living in a cave for the past 18 months, let’s start with some background. Congress passed the First Step Act in December 2018, the first significant criminal justice legislation in 30 years or so. The public relations centerpiece of the Act was a program to be implemented by the Bureau of Prisons that would assess inmates not just for security risks (something that the BOP has done since the Feds took their first prisoner – the guy who stole General Washington’s wooden teeth – almost two and a half centuries ago), but for the inmate’s risk of recidivism and his or her programming needs that would presumably reduce the chance of reoffending.

The program would then match the inmates with prison programs that would address those needs. Inmates who successfully completed the various programs would be granted “earned-time credits” which could be used for additional halfway house or home confinement. The first 12 months’ worth of credit could even be applied to reduce sentence length by a year.

tortoise190722The Act gave the BOP ample grace period to adopt the assessment tool and implement programming, but time finally ran out yesterday. And just under the wire, last Wednesday the Dept. of Justice announced implementation of the final recidivism and needs assessment program, known by the acronym PATTERN. The final version contains several minor changes from last summer’s draft, alterations made in response to public comments filed last fall. Two days later, the BOP published a list of the programs it currently has or will be adopting, and announced the beginning of earned time credits for federal inmates for completing programing intended to reduce recidivism.

“Beginning today, inmates will have even greater incentive to participate in evidence-based programs that prepare them for productive lives after incarceration,” Attorney General William Barr was quoted as saying in last week’s DOJ press release. “The First Step Act is an important reform to our criminal justice system, and the Department of Justice is committed to implementing the Act fully and fairly.”

The principal change in PATTERN was to add a dynamic measure of an inmate’s “infraction free” period during incarceration, adding a number of prior programs and UNICOR to the programs that benefitted a prisoner’s PATTERN score, and removing metrics for age at first arrest and voluntary surrender from the PATTERN assessment matrix. PATTERN will also no longer look at whether an inmate participated in education or drug treatment programs to measure initial recidivism risk.

Critics had complained that the draft’s focus on an inmate’s prior run-ins with the criminal justice system weighted the system so that minorities generally would be classified as greater recidivism risks than would white inmates.

EBProg200120The list of “evidence based” programs that can qualify an inmate for earned time credits, published last Friday on the BOP site, identified 70 programs, almost all of which will be available at all BOP facilities. The list included some unsurprising ones, such as working at UNICOR, vocational programs, all drug programs, GED and ESL. As well, many new programs, many aimed as cognitive behavior therapy to address everything from food disorders, insomnia, gambling and anger management.

Each program entry in the BOP release lists the program, duration, number of hours’ earned time credit the program earns, locations where the program is offered, and needs the program addresses. For example, one of the 70 programs is called BRAVE (Bureau Rehabilitation and Values Enhancement), a cognitive behavior therapy program for young males on their first offense, will run for six months, 20 hours per week, and earn an inmate completing the program 500 hours of earned time credit. The program, which addresses programs with antisocial peers and cognitions, will be offered at FCI Beckley and Victorville.

The publication contains no explanation of how the BOP intends to convert earned time credit hours into days, which is what First Step contemplated. In the case of a continuing activity like UNICOR, the program list states inmates can earn 500 earned time credit hours, but it does not specify over what period of time or if that 500 hours is just a one-time award.

falsehope170206The First Step Act authorized the BOP to award earned-time credits retroactively to the adoption date of the Act, but the agency has said nothing about doing so. Inmates have had high hopes that such credits would be granted, but long-time observers – including the undersigned – held out little hope that the BOP would take any discretionary step that conferred a benefit on inmates. So far, even a little hope has proven to be too much.

The BOP list of programs is available here.

DOJ, Department of Justice Announces Enhancements to the Risk Assessment System and Updates on First Step Act Implementation (Jan. 15)

BOP, Evidence-based Recidivism Reduction (EBRR) Programs and Productive Activities (PA) (Jan. 17)

– Thomas L. Root

BOP Slouches Toward First Step Programming – Update for January 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.

EARNED TIME CREDITS – THE DEVIL’S IN THE DETAILS

devil200113Probably the biggest selling point used by First Step Act supporters when Congress passed the measure in December 2018 was that the bill would deliver evidence-based programming to reduce recidivism. The inmates would be assessed under a new program that accurately gauged their likelihood to be recidivists and their needs that should be met to reduce that likelihood. The inmates would benefit, the public would benefit, the overcrowded and understaffed prisons would benefit, the U.S. Treasury would benefit. Everyone’s a winner!

The programming to reduce recidivism, after more than a year of preparation, is supposed to begin in a week. But the devil’s in the details, and hope for a broad rollout that meets the expectations of First Step backers, let alone those of inmates, is dwindling rapidly.

recividists160314By now, virtually all inmates have undergone an initial assessment under PATTERN, the new risk and needs assessment program developed in response to the First Step Act. According to the Act (a provision now codified at 18 U.S.C. § 3621(h)(1)(B)), the Bureau of Prisons is to begin to expand the most effective evidence-based recidivism reduction programs and productive activities it currently offers and to add any new evidence-based recidivism reduction programs and productive activities necessary to effectively implement First Step by Jan. 20. Subsection (h)(2)(A) gives the BOP until Jan. 20, 2022, to provide such programming for all inmates. During the “phase in” period, priority placement in the programs is to go to people closest to their release date.

As an incentive for participating in the programs, the First Step Act provides eligible inmates with earned-time credits which can be used toward increasing pre-release custody (halfway house and/or home confinement) or swapping time inside the BOP for more supervised release. A Bloomberg Law article described it last week like this: “Earned time credits… do not reduce a prisoner’s sentence, per se, but rather allow eligible prisoners to serve their sentence outside prison walls.”

winner200113But for a lot of reasons the question of whether the BOP is anywhere close to meeting the First Step Act’s timetable remains open. First, as the BOP admitted two weeks ago, PATTERN has not yet been adopted in its final form. Although the BOP has promised to identify its existing programs that will award inmates earned-time credits, it has not yet done so. What’s more, a surprising large number of federal inmates will not be eligible to receive earned time credits because the BOP has determined they are excluded by one or more of the 65 categories of crime or immigration statute exempted from the program by Congress.

The current limits on time in a halfway house (up to 12 months) and home confinement (the lesser of six months or 10% of the sentence) specified in 18 U.S.C. § 3624(c) will not apply to earned time credits. Thus, an inmate can be released to more than a year of halfway house or home confinement after accumulating earned time credits.

Bloomberg Law reported last week that any earned-time credits inmates receive for completing programs prior to the final implementation of the PATTERN tool – whenever that will be – will not be eligible for redemption until the tool is implemented. What’s more, the article reported, “the ability to start earning credits may not actually come for most prisoners until even later than that, depending on how long it takes the BOP to apply PATTERN and create programming and productive activities and assign prisoners to them.”

prisonrace200113PATTERN was the subject of a House Judiciary Committee Oversight hearing last October, where some experts expressed concern about its “racial bias and lack of transparency, fairness, and scientific validity.” The Dept. of Justice has not said how close PATTERN is to being finalized, stating only that it “is currently undergoing fine-tuning.” Indications are that inmates that have been scored so far have been analyzed under a preliminary version of the tool. Last July, DOJ estimates were that the final PATTERN program would be in place by Thanksgiving 2019.

A further impediment to full implementation of earned-time credit program will be the availability of halfway house beds. In most of the country, there is a shortage of available halfway house beds for federal inmates. The Act provides no additional funding or resources for the BOP to increase the loss of halfway house beds, which was at crisis levels several years ago.

“The BOP has a long history of acting in ways that result in lengthier and less productive terms of incarceration despite the obvious will of Congress,” David E. Patton, executive director of the nonprofit Federal Defenders of New York, was quoted as saying by the Washington Post. “For decades the BOP took an unreasonably restrictive view of good time, resulting in thousands of years of additional overall prison time. For decades it refused to exercise the authority given to it by Congress to release incarcerated people who were terminally ill, infirm, or otherwise suffered from extraordinary circumstances… and for decades it has not provided enough vocational, educational, mental health, and substance abuse programming despite abundant need and lengthy waitlists.” Pointing to DOJ data, Patton said wait lists include 25,000 prisoners for prison work assignments, 15,000 for vocational and educational training and 5,000 for drug treatment.

The Washington Post said last week that almost half of BOP prisoners complete no programs, more than half don’t get needed drug treatment, more than 80% haven’t taken technical or vocational courses, and more than 90% have no prison industry employment, according to data.

Help-Wanted180221“The BOP is struggling to fulfill the requirements of the Act as the Bureau is still more than 4,000 positions short,” Shane Fausey, president of the American Federation of Government Employees Council of Prison Locals, told the Post. He complained of “abusive overtime and mandatory double shifts,” adding that requirements of the First Step Act have worsened the crisis.

BOP Director Kathleen Hawk Sawyer told the House oversight committee last October that the understaffing was over 3,700 vacancies and said resolving that “is among my highest priorities… but doing so will take time.”

Bloomberg Law, Insight: The First Step Act—Earned Time Credits on the Horizon (Jan. 9)

Washington Post, Federal prison reform has bipartisan support. But it’s moving slowly. (Jan. 9)

– Thomas L. Root