Tag Archives: BOP

Batting Cleanup for LISA… – Update for June 17, 2022

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wahoo220617We post news and comment on federal criminal justice issues, focused primarily on trial and post-conviction matters, legislative initiatives, and sentencing issues.

Today, we’re cleaning up the week with some odds and ends left over from the week before…

Judiciary Committee Grills Sentencing Committee Nominees: President Biden’s seven nominees to the U.S. Sentencing Commission promised at a Senate hearing last week to prioritize implementing the First Step Act by amending the Guidelines, something the Commission had been unable to do since losing its quorum just as the 2018 law passed.

U.S. District Judge Carlton Reeves (S.D. Miss), nominated to be chairman of the USSC, told the Judiciary Committee that the Commission would also address what he called “troubling” divisions that emerged among courts on sentencing issues during the years it lacked a quorum.

Four Democrat and three Republican picks have been nominated to join the seven-member commission.

Senior U.S. District Judge Charles Breyer (N.D. Cal.), the lone remaining member of USSC, has complained that the Commission’s inability to update its compassionate release policy (USSC § 1B1.13) in light of First Step has resulted in inconsistent decisions across the nation on compassionate release amid the COVID-19 pandemic.

“Today, we take an important step to remedy that problem,” said Judiciary Committee chairman Sen Richard Durbin (D-IL).

Sen Marsha Blackburn (R-TN) jumped on one Democratic nominee, former U.S. District Judge John Gleeson. Gleeson, one of the most thoughtful and creative sentencing judges during his time on the E.D.N.Y. bench, has been a critic of mandatory minimum drug sentences.

“How can you possibly say that more lenient sentencing and reduced penalties for convicted criminals is the answer to our crime problems?” Blackburn complained. Gleeson, now a partner at a Wall Street law firm, responded that as a judge he tried only to show the impact mandatory sentences have on “the individualized sentencing that our system contemplates.”

pissfire220617Meanwhile, former federal defender Laura Mate, a director of the Federal Defenders’ Sentencing Resource Counsel Project, refused demands by Sen Josh Hawley (R-MO) to renounce a detailed 61-page letter to the Sentencing Commission she had co-signed in 2013. The letter had criticized mandatory minimums, especially for some child pornography offenses, with a detailed, well-reasoned argument.

Mate was pilloried by at least one YouTuber for politely dodging Hawley’s question, but given what I know of the good Senator from the Show-Me State, I would resist agreeing with him that the sun rises in the east, because he would end our exchange accusing me of causing dawn to arrive too early.

Republican USSC nominees include Claire McCusker Murray, a Justice Department official during the Trump era; Candice Wong, a federal prosecutor in Washington, D.C., and U.S. District Judge Claria Horn Boom of Kentucky.

The hearing suggests that the Senate will act soon on restoring a functional Sentencing Commission. However, as Ohio State University law professor Doug Berman observed in his Sentencing Law and Policy blog, “it is still unclear exactly when there will be a committee vote and then a full Senate vote on these nominees. I am hopeful these votes might take place this summer, but I should know better than to make any predictions about the pace of work by Congress.”

Senate Judiciary Committee, Hearing (June 8, 2022)

Reuters, Biden’s sentencing panel noms vow to implement criminal justice reform law (June 8, 2022)

Sentencing Law and Policy, Senate conducts hearing for nominees for US Sentencing Commission (June 8, 2022)

Federal Defenders, Letter to Sentencing Commission (July 15, 2013)

rockingchair220617Last Week Makes Mike Long for Retirement:  BOP Director Carvajal is probably giddy at the prospect that his replacement is finally waiting in the wings. 

Besides the USP Thomson investigation being announced last week, the BOP suffered some embarrassing press last week:

•  A Miami TV station reported on a CO’s claim that drones were being used to smuggle contraband into FDC Miami;

•  A Colorado paper reported that the BOP was paying $300,000 in damages to an ADX Florence inmate with Type 1 diabetes who alleged in a lawsuit that he had been denied adequate amounts of insulin;

•  A San Francisco area TV station reported that a former FCI Dublin inmate – who early on told BOP authorities about what has turned into a major sex abuse scandal featuring the arrest of a former warden and four other staffers – says she was punished in retaliation for calling out the staff abuse. “I will never tell another inmate that they should go to report anything to anyone higher up,” the former prisoner told KTVU. “Because all that’s going to happen is it’s going to make their life worse.”; and

•  A former correctional officer at the Federal Medical Center in Lexington, Kentucky, was sentenced to more than 11 years after pleading guilty to sexual abuse of inmates.

Finally, in February, Carvajal told a Congressional committee that the “common criticism” that the BOP is understaffed was a “narrative [that] is routinely misrepresented without reference to the factual data.” Two weeks ago, he told BOP staff in an agency-wide memo that “staffing levels are currently trending downward nationwide.”

Last week, Government Executive reported that the declines have happened in the last four months and that the employees who have quit cite “lack of training and lack of connection to the institution as reasons for their leaving the bureau within the first few years of service.”

Mike must be thinking that the old rocking chair is looking pretty good right now.

WQAD-TV, Justice Department Inspector General launches investigation into USP Thomson (June 9, 2022)

WTVJ, Inmates Attempted to Smuggle Contraband Using Drones, Correctional Officer Says (June 8, 2022)

Colorado Sun, Bureau of Prisons to pay $300,000 to settle lawsuit after diabetic prisoner was allegedly deprived of insulin at Supermax facility (June 7, 2022)

KTVU, Woman who reported Dublin prison sexual abuse claims she was target of retaliation (June 10, 2022)

Government Executive, Federal Prisons Are Losing Staff. The Bureau’s Director Would Like to Fix That By October (June 6, 2022)

– Thomas L. Root

Feds Descend on USP Thomson – Update for June 10, 2022

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

DOJ INSPECTOR GENERAL LAUNCHES USP THOMSON INVESTIGATION

A week ago, three members of Congress called for an immediate federal investigation into violence and abuse at  USP Thomson, prompted by a Marshall Project/NPR report from two days before.

thomson220610Yesterday, the Dept. of Justice Inspector General launched an investigation into Thomson, based on the news report’s details of inmate deaths and alleged Bureau of Prisons staff abuses.

Sens. Richard Durbin and Tammy Duckworth, and Rep Cheri Bustos (all D-IL), wrote in last week’s letter to DOJ Inspector General Michael Horowitz that it was “imperative” he look into allegations that

• Staff purposely stoked tensions between cellmates and intentionally paired men whom they knew would attack each other;

• Staff encouraged assaults against sex offenders and informants and falsely told inmates that a particular person was a sex offender, resulting in repeated physical and sexual assaults;

• Abusive shackling leaving scars known as “the Thomson tattoo,” including use of a room known as “the dungeon,” where men would lie shackled to a bed for hours without food or water;

• abusive behavior towards incarcerated persons after the SMU was transferred to USP Thomson;

• The highest rate of pepper-spray usage in the BOP; and

• Staff laughing and joking at a Jewish inmate as he lay dying in a hospital following an assault after staff placed him in a recreation cage with white supremacists.

prisonfight220211The letter said, “If these reports prove accurate, they describe conduct that would almost certainly contravene numerous BOP policies, as well as infringing the civil rights of individuals in BOP custody and possibly violating federal criminal statutes.”

Yesterday, AFGE Local 4070 President Jon Zumkehr said in a released statement, “We fully support the investigation into the allegations into USP Thomson and we have also invited Sen. Durbin and Sen. Duckworth to visit USP Thomson.” No doubt Thomson staff also enthusiastically anticipates root canal procedures performed without anesthetic.

Back in May 2020, the union complained that a staff shortage at Thomson was resulting in unsafe working conditions as the BOP used augmentation – assigning non-custody workers like nurses, psychologists and cooks to fill in as correctional officers – to address the employee shortage. WQAD-TV reported that over 2,000 overtime shifts were being authorized every month just to keep up with daily prison functions.

In a speech on the Senate floor yesterday, Durbin – who is chairman of the Senate Judiciary Committee – promised a Committee hearing in the next few weeks on BOP oversight, including the continued overuse of solitary confinement and restricted housing in federal prison facilities such as USP Thomson. Currently, he said, about 7.8% of BOP inmates are housed in a form of restricted housing.

'Enjoy retirement,' Durbin tells Carvajal, 'preferably sooner rather than later.'
‘Enjoy retirement,’ Durbin tells Carvajal, ‘preferably sooner rather than later.’

“We need answers from the Biden Administration on the failure to reduce the use of restricted housing,” Durbin said, “and we will discuss what BOP must do to address the staffing crisis that has contributed to this disastrous situation.”

Durbin also renewed his call for the immediate replacement of BOP Director Michael Carvajal, who announced his retirement months ago but is staying on until a replacement is named.

WQAD-TV, Justice Department Inspector General launches investigation into USP Thomson (June 9, 2022)

Press release, Durbin Slams BOP Mismanagement, Allegations Of Abuse At USP Thomson (June 9, 2022)

Sen. Durbin, Letter to DOJ Inspector General (June 1, 2022)

NPR, Lawmakers call for probe into deadly federal prison (June 2, 2022)

– Thomas L. Root

BOP: Not a ‘Common Jailor’ But A Pretty Indifferent One – Update for June 3, 2022

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

WHERE HAVE WE HEARD THIS ONE BEFORE?

Complaints about the BOP healthcare system are as common as kvetching about the food it serves. There may be a reason for that.

chickie220603Vincent “Chickie” DeMartino, serving the final 30 months of a 300-month sentence for an attempted mob hit, sought compassionate release under 18 U.S.C. § 3582(c)(1)(A)(i) because of his deteriorating health – in particular, complications with his right eye – and because of the BOP’s “cavalier attitude” in addressing his worsening medical problems.

Vince argued that his poor health and the BOP’s refusal to do anything about it constituted the “extraordinary and compelling” reasons required by the statute for a reduction of his sentence to time served.

Last week, the United States District Court for the Eastern District of New York agreed. As the Daily News colorfully put it

A Brooklyn judge sprang a violent mobster from prison because he said the federal Bureau of Prisons did a lousy job taking care of the wiseguy’s medical problems.

Federal Court Judge Raymond Dearie issued a scathing ruling Thursday, saying the feds weren’t competently treating made man Vincent “Chickie” DeMartino’s maladies. The goodfella had more than two years left of his 25-year sentence for an attempted hit on a fellow Colombo family member.

The Court found that Vince suffered from high blood pressure which puts him at severe risk of stroke and numerous ophthalmologic issues. Vince said he was essentially blind in his right eye and had 20/400 vision overall, which made him legally blind.

healthcare220224What made his condition “all the more extraordinary and compelling,” the Court held, was “the BOP’s lack of responsiveness and candor with respect to his medical conditions.” Despite the BOP being aware of the condition, the District Court said, “the record reflects a consistent pattern on the part of the BOP of downplaying Mr. DeMartino’s conditions and delaying treatment. Despite the severity of his ocular conditions, it has been a herculean task for Mr. DeMartino to see an ophthalmologist.”

A month ago, the Court told the parties that Vince required “immediate appropriate care.” The government promised the Court that Vince would see an outside specialist right away. That of course did not happen. Vince’s prior visits to the eye doc had been canceled, according to the BOP, because the facility Health Administrator asserted that the “retina specialist does not need to see the defendant again unless he is having further complications.”

This statement, charitably put, lacked the kind of candor that the government would have demanded from Vince, were the tables turned.. The Court found the statement to be “misleading, as the Health Administrator’s note omitted reference to the ophthalmologist’s recommendation that Mr. DeMartino undergo pars plana vitrectomy surgery.”

When the Court ordered the Government and BOP to provide clarification about Vince’s need for surgery from the same ophthalmologist who had recommended surgery, the Government pulled the old “bait-and-switch.” It provided a memorandum from an optometrist – not an ophthalmologist and definitely not the one who had recommended the surgery – to support the appalling lack of care. The BOP optometrist said Vince’s surgery was unnecessary, but then qualified his opinion by admitting that he could not “directly determine the need, or lack thereof, for surgery” and would need to “defer questioning related to a need for surgery and/or the urgency of surgery to an ophthalmologic surgeon.”

That’s sort of like saying “it’s definitely not going to rain tomorrow, but I have not seen a weather forecast and even if I had, I’m not a meteorologist and I really have no idea whether what I just said is right or not.”

healthbareminimum220603“All told,” the court ruled, “this record leaves the Court with the impression that the BOP has undertaken the bare minimum of care for Mr. DeMartino, limiting its efforts to ensuring that he does not require emergency surgery, but minimizing the fact that his vision is failing and refusing to implement any meaningful plan to monitor or treat the conditions in the longer term… The BOP is not a common jailor. Theirs is a far more challenging and vital responsibility. Human beings are entrusted to their care for decades on end. There is no excuse for inaction or dissembling and, in this Court’s view, no alternative to immediate release.”

Order (ECF 276), United States v. DeMartino, Case No 1:03cr265 (EDNY, May 26, 2022)

– Thomas L. Root

Reluctant Director Candidate Would Inherit “Crisis-Plagued” BOP – Update for May 23, 2022

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

MOHR RUMORED TO BE LEAD CANDIDATE TO REPLACE CARVAJAL

Associated Press has reported that Gary Mohr, former director of the Ohio Dept of Rehabilitation and Correction, has emerged as the leading contender to run what AP calls “the crisis-plagued federal Bureau of Prisons.”

Citing three people familiar with the matter, AP said last Friday that Mohr is among those at the top of the list of candidates to replace BOP Director Michael Carvajal, who resigned in January but is remaining in the post until a successor was named.

A final decision has not been yet been made, AP said, and it’s not clear when an announcement will be be forthcoming.

clownshow220523AP reported that Mohr said he was “shocked to see an article describing me as a top contender” for the position and denied that he had applied or been interviewed. However, AP said, those familiar with the process “insisted Saturday that Mohr remained among those being seriously considered for the position.”

ironyalert220523So somebody here’s not telling the truth. If Mohr is truly in the running, then his falsely denying that he’s applied is not the best look for someone stepping into a position where credibility would be refreshing. Of course, it may be that the BOP really is floating his name as a finalist for a job he’s never applied for. Except that would suggest that the people responsible for hiring the new director are incompetent. And how could that be?

Mohr, with more than 47 years in corrections, might be a good fit for the job. His corrections career began in a teaching position in the Ohio prison system. He has held other posts since, including as a warden, head of Ohio’s youth prisons system, and eventually Ohio DRC Director from 2010 through 2018. After retiring from ODRC, he became president of the American Correctional Association and formed a prison consulting firm focused on promoting system reform “aimed at providing a sense of hope for those under confinement and the staff responsible for their supervision,” according to Correctional News.

As head of Ohio’s prison system, Mohr oversaw over 12,000 employees and about 50,000 inmates at 28 facilities. The BOP is budgeted for around 37,500 employees, operates 122 facilities and has about 157,000 inmates.

candor220523As ODRC director, Mohr sought to reduce the state’s prison population and “spearheaded efforts to reduce the number of first-time, nonviolent offenders behind bars,” AP said. Having managed to cut prisoners by only about 1,000 inmates in his tenure, Mohr said when he left the director’s position that he was “extraordinarily disheartened” he couldn’t do more.

That, at least, is a candid appraisal, and a refreshing change from the current director, to whom every BOP misstep over the past few years has really seemed to Mikey to be “a testament to the hard work of our dedicated professional staff who support public safety and promote reentry.”  Or (remember this one?), “The Bureau has a robust infrastructure to educate and train staff as to prohibited actions and to advise all persons (staff, inmates and the public) as to how to report misconduct.”

If Mohr takes the job, he may find the situation he’s marching into exceeds even the AP’s characterization of the BOP as “crisis-plagued.” This past week alone:

• True Crime: The District of Oregon US Attorney announced that a former FCI Sheridan correctional officer (CO) had pled guilty to a bribery and contraband smuggling conspiracy. Nickolas Herrera admitted guilt in a conspiracy to smuggle contraband to an inmate, beginning with food, clothing, and cigarettes but morphing into cellphones and controlled substances.

• Sexual Predator:  In Dallas, a former CO at FMS Carswell, pled guilty to sexually abusing several female inmates there. According to the plea agreement, Luis Curiel admitted to three separate sexual encounters with inmates in October 2021.

pervert160728• Sexual Pervert: A BOP CO at FDC Los Angeles last week admitted to sodomizing an inmate while she was quarantining in her cell after a positive COVID test, according to a newly unsealed plea agreement unsealed along with an information charging Jose Viera with deprivation of civil rights under color of law. The disturbing and disgusting assault – for which ample DNA evidence exists, if you get my drift – occurred five days before Christmas 2020.

• A crisis of credibility: Four months after the fact, the BOP last week got around to admitting to two more inmate deaths from COVID in January, one at Englewood and another at Leavenworth. Meanwhile, the number of BOP employees with COVID has been steadily climbing in the last month, now at 265, while the number of sick inmates has been falling. The reason may have something to do with testing inmates for the coronavirus: as of three months ago, the BOP running total of inmate COVID tests since the start of the pandemic was 128,895. As a running total, of course, it should only be going up or – at worst – remaining unchanged.  But not in the BOP’s wacky world of numbers. As of last Friday, that number had actually fallen to 128,719.

crazynumbers200519Most charitably, it seems that no testing is being done anymore. The cynical view might be that none of the BOP’s COVID numbers are reliable. But with national COVID numbers and BOP employee infections – numbers the BOP cannot control – going up, it is quite puzzling that inmate numbers keep falling.

Mr. Mohr, taking you at your word, we completely understand why you might want to pass on this job.

Associated Press, Former Ohio prisons chief top contender to run US prisons (May 21, 2022)

Correctional News, Gary Mohr (October 18, 2021)

Statement of Michael Carvajal, House Committee on Judiciary (February 3, 2022)

US Attorney’s Office, Former Federal Correctional Officer Pleads Guilty for Role in Bribery and Contraband Smuggling Conspiracy (May 19, 2022)

KTVT-TV, Dallas, Fort Worth prison guard admits sexually abusing inmates (May 18, 2022)

Daily Beast, Prison Guard Allegedly Sodomized Inmate Quarantining With COVID (May 17, 2022)

– Thomas L. Root

Home Confinement Removal Without Hearing Challenged – Update for May 11, 2022

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

CONNECTICUT SUIT ARGUES HOME CONFINEMENT REVOCATION VIOLATED DUE PROCESS


homeconfinement220511Under the CARES Act, the Federal Bureau of Prisons was authorized to place inmates in extended home confinement as a means of getting medically vulnerable people out of the path of the coronavirus. Under this authority, the BOP has sent about 9,000 inmates to home confinement, where they remain in their residences except for work and a very few tightly-controlled exceptions (weekly groceries, medical appointments, church services and the such).

BOP Director Michael Carvajal has touted the success of the program. He told the Senate Judiciary Committee that only 289 inmates had been returned to prison after being on CARES Act home confinement, and only three of those were returned because of new criminal conduct.

The flip side of that coin is that the BOP sees home confinement as just another prison designation, meaning that the BOP can pull someone at home back to prison for the flimsiest of reasons, or for no reason at all. The government has argued that because inmates have no due process right to placement in any particular prison facility, they have no grounds to challenge a decision to revoke home confinement.

Now, three FCI Danbury inmates have filed a habeas corpus action in U.S. District Court in Connecticut claiming their release to home confinement under the CARES Act was revoked without due process.

“There’s no due process for resolving these cases or real consideration whether the person should be pulled back to prison,” said their attorney Sarah Russell, director of the Legal Clinic at Quinnipiac University School of Law. “There is no opportunity for a hearing or an argument even when children are being impacted.”

On home confinement for over a year, the lead petitioner, Nordia Tompkins, had been able to regain custody of her daughter, enroll in vocational classes and hold down a job. She was sent back to prison after the halfway house supervising her could not reach her by phone because she was in class at an approved time.

The government has argued that because the inmates remained in BOP custody, they had no “protected liberty interest” in remaining on home confinement. Such an interest is necessary in order to trigger a right to procedural due process.

home190109However, the inmates – represented by Yale and Quinnipiac University law school professors – argue that other factors, “such as whether one can form close family and community ties, seek and obtain employment”, are “markers of a liberty interest. It does not matter that someone is serving sentence or is technically in the ‘custody’ of prison authorities. Because Ms. Tompkins has been able to reside with her children and take care of them, attend a community school to further her education, and seek employment, she has a liberty interest in remaining on home confinement under the Due Process Clause [and] was entitled to basic due process protections…”

Danbury News-Times, Danbury prison inmates file lawsuit over home confinement getting revoked (May 5, 2022)

Tompkins v. Pullen, Case No. 3:22cv339 (D.Conn, filed Mar 2, 2022)

– Thomas L. Root

Ratting Out the Federal Bureau of Prisons – Update for May 10, 2022

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

AP WANTS TIPS ON BOP MISMANAGEMENT

About three summers ago, Associated Press reporters Michael Balsamo and Michael Sisak wondered how Jeffrey Epstein, at the time probably the highest-profile federal inmate in America, was able to commit suicide while in constantly-monitored single-cell lockdown.

lazyguard191127They found that “the dysfunction surrounding Epstein’s suicide — guards sleeping and browsing the internet, one of them pulled from a different prison job to watch inmates, both working overtime shifts — wasn’t a one-off but a symptom of a federal prison system in deep crisis.”

Since then, Balsamo and Sisak have reported on sexual abuse at FCI Dublin, crumbling infrastructure and chronic staffing shortages, pervasive criminal misconduct among BOP employees, and management fiascos like the December 2020 executions at USP Terre Haute that turned into COVID superspreader events.

Finally, in January, they broke the surprise resignation of BOP Director Michael Carvajal, a Trump administration holdover, and his top deputy.

snitchin200309Last week, AP published a retrospective that included a surprising invitation to “whistleblowers, inmates and their families, and anyone else who suspects wrongdoing or knows what’s going on and tells us about it” to contact AP online or the reporters by email with tips about the BOP.

What might there be to tell? Congressman Randy Weber (R-Texas) may have a suggestion. After another inmate died at USP Beaumont in a fight with a fellow prisoner on May 1st, Weber – a member of the BOP Reform Caucus – wrote Carvajal to express his “dismay[] that, time and time again, the especially dire situation at FCC Beaumont remains neglected by the BOP… I have been informed by COs at USP Beaumont that BOP has used the emergency recall system several times to fill vacant posts. Actions like this only serve as a band-aid to the underlying problems.”

Weber told Carvajal that he “want[s] to be part of the solution, especially at FCC Beaumont, but first, these problems need to be acknowledged soberly by BOP leadership.”

The latest killing happened the same week that AP’s Balsamo and Sisak reported that Carvajal’s March visit to FCI Dublin – site of rampant sexual abuse of female inmates by staff (including the prior warden) – was sabotaged by Dublin employees.

charliebrownfootball220510“Officials moved inmates out of the special housing unit so it wouldn’t look as full when the task force got there,” AP reported, “and they lied to Carvajal about COVID-19 contamination so inmates in a certain unit couldn’t speak to him about abuse.”

One inmate did manage to confront Carvajal on the rec yard, and spent 15 minutes describing in graphic detail of her alleged abuse. She “grew increasingly upset,” the story said, “calming down only after prison officials brought her tissues. She was eventually taken out of the room and brought to a prison psychologist, where she was offered immediate release to a halfway house. She objected. She wanted to wait so she could tell her story publicly to congressional leaders expected at the prison.”

However, “Bureau of Prisons and Justice Department officials told the woman that because she was a potential witness, she couldn’t talk about the investigation.” She was hustled off to a halfway house.

So far, the Biden Administration has not announced a replacement for Carvajal.

Associated Press, The story so far: AP’s investigation into federal prisons (May 4, 2022)

Rep Randy Weber, Letter to BOP Director Carvajal (May 2, 2022)

Associated Press, Abuse-clouded prison gets attention, but will things change? (May 5, 2022)

– Thomas L. Root

Courts Questioning BOP Medical Care As COVID Surge Loom – LISA Newsletter for May 9, 2022

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

COVID SURGE FORECAST AS BOP’S RESPONSE QUESTIONED

The Biden administration is warning the nation could see 100 million COVID infections and a potentially significant wave of deaths this fall and winter, driven by new omicron subvariants that have shown a troubling ability to overcome vaccines and natural immunity.

The projection is part of an Administration push to persuade lawmakers to appropriate billions more to purchase a new tranche of vaccines, tests and therapeutics, released last Friday as the nation is poised to reach a milestone of 1 million COVID deaths sometime this week.

omicron211230Omicron variants BA.4 and BA.5 are causing a spike in cases in South Africa, where it’s winter, continuing a pattern of semi-annual COVID-19 surges there. The genetic makeup of these variants — which allows them to evade immunity from previous infection — and the timing of their emergence in the Southern Hemisphere point to a surge in the United States in the coming months, says UCLA Health clinical microbiologist Dr. Shangxin Yang.

The US also should expect a summer coronavirus surge at least across the South. Last week, former White House COVID response task force coordinator Deborah Birx said, “We should be preparing right now for a potential surge in the summer across the southern United States because we saw it in 2020 and we saw it in 2021.” With more infections come more opportunities for the virus to mutate, according to WHO’s Maria Van Kerkhove.

As it is, an anticipated summer surge of COVID in the south may have begun. The seven-day national average of new infections more than doubled in five weeks from 29,000 on March 30 to nearly 71,000 last Friday. White House officials have said they’re concerned that much of the nation’s supply of antivirals and tests will be exhausted as a result of the anticipated increase in cases in the South. Without those tools, they say the country would be unprepared for a fall and winter surge, and deaths and hospitalizations could dramatically increase.

healthcare220224Predictions of future COVID waves come as the Bureau of Prisons’ COVID medical care is subjected to fresh criticism. Healthcare news outlet Stat reported last week that since November 2020, the BOP “used just a fraction of the antiviral drugs they were allocated to keep incarcerated people from getting seriously ill or dying of Covid-19.” Stat said internal BOP records show the Bureau used less than 20% of the stock “of the most effective antiviral drugs for treating COVID.”

In the case of Pfizer’s effective antiviral pill, Paxlovid, BOP prescription records over the two years ago “include just three prescriptions for Paxlovid, despite the fact that the drug is easy to administer and has been proven to significantly reduce hospitalization and death from Covid-19.”

Two compassionate release grants last week under 18 USC § 3582(c)(1)(A)(i) on opposite sides of the nation suggest that district courts may be tiring of the BOP’s blandishments that its medical care is adequate. In Oregon, a granted early release to James Wood, a 53-year-old man who had served 68% of his sentence for two bank robberies. The court held Jim had served significant periods during the pandemic without access to his psychiatric medication or received medication that made his symptoms worse.

The judge called Jim’s time at FCI Sheridan during the pandemic “an excruciating experience.” In addition to frequent lockdowns, which applied to all inmates, Jim suffered an injury that prison medical services failed to treat. The injury festered, but Jim was finally able to knock back the infection by pouring hot water on the wound.

The government argued that medical records did not substantiate that Jim had been denied treatment. He replied that that was unsurprising inasmuch as the medical staff refused to do anything, a refusal that would not have generated a record.

toe220509Meanwhile, a Connecticut federal court released Tim Charlemagne, who was doing time for a drug offense, after finding “the record… demonstrates that Mr. Charlemagne has received inadequate care for his serious medical conditions since the day he began his period of incarceration.”

Those conditions included morbid obesity, high blood pressure, and diabetes. Tim didn’t receive the foot care in prison that his podiatrist recommended when he was sentenced, and all the toes on his right foot had been amputated as a result, according to the Federal Public Defender. The government argued that Tim was being transferred to a medical center from FCI Schuykill (where he presumably would get better care), but it admitted no date set was set for the transfer.

Tim had served 14 months of his 41-month sentence. He will do another nine months on home confinement before beginning his supervised-release term.

Both of these decisions are noteworthy because they combine a general acknowledgment of miserable prison conditions during the pandemic with specific findings that BOP healthcare had failed the inmates seeking compassionate release. The cases suggest that successful compassionate release motions as COVID surges again will focus on an inmate’s individual allegations of inadequate medical care.

Washington Post, Coronavirus wave this fall could infect 100 million, administration warns (May 6, 2022)

US News, New Omicron Subvariant Spreading in US as Coronavirus Cases Increase (May 2, 2022)

UCLA Health, New omicron variants and case surge in South Africa portend summer rise in COVID-19 cases here (May 6, 2022)

Stat, Prisons didn’t prescribe much Paxlovid or other Covid-19 treatments, even when they got the drugs (May 5, 2022)

Portland Oregonian, Judge grants compassionate release to convicted bank robber, calls his time at Oregon’s federal prison ‘excruciating experience’ (May 6, 2022)

United States v. Wood, Case No 3:18-cr-00599 (D.Ore, compassionate release granted May 6, 2022)

Windsor Journal-Inquirer, Judge orders release of Windsor man in Enfield OD death case (May 6, 2022)

United States v. Charlemagne, Case No 3:18-cr-00181, 2022 U.S. Dist. LEXIS 82270 (D.Conn, May 6, 2022)

– Thomas L. Root

COVID: Forgotten But Not Gone – Update for May 5, 2022

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

COVID’S NOT YET GONE

deadcovid210914COVID reminded us last week that it isn’t eradicated. On April 20th, the BOP reported 60 inmates and 150 staff cases. As of last night, inmate cases had more than doubled to 148 cases, and staff cases remained stubbornly high at 158.

The number of BOP facilities with COVID climbed 45% to 64, half of the total operated by the Bureau.

This is not surprising. Centers for Disease Control and Prevention data released yesterday show that the latest COVID variant,  BA.2.12.1,  now makes up 36.5% of all newly-sequenced positive Covid tests. That’s a jump of close to 100% in the past two weeks.

Incidentally, the United States recorded its millionth COVID death yesterday.

The Washington Post reported last week that COVID’s toll is no longer falling almost exclusively on the unvaccinated. The vaccinated made up 42% of fatalities in January and February during the Omicron surge, compared with 23% of the dead in September, the peak of the Delta wave. As of last Friday, 82.1% of inmates had been vaccinated, while 71.1% of staff had gotten the jab.

caresbear210104Forbes last week reported that federal “inmates who have served a certain percentage of their sentence and who also have underlying health conditions, are still being processed for home confinement. However, the CARES Act releases have slowed because the number of cases in prisons have plummeted and staff is also stressed to process prisoners because they are dealing with the First Step Act (FSA) implementation.” Due to the need to release prisoners suddenly awarded back FSA earned-time credits, prisoners “who have health issues and could be transferred under the CARES Act, are being pushed to the back of the line so that overworked case managers can make provisions for thousands of prisoners who will be transitioning to post-release custody in the coming months.”

Writing in Forbes, Walter Pavlo said, “While case managers struggle to keep up with the growing demands of their jobs, the healthcare in the BOP has been under stress as well. It is the perfect storm of poor underlying health of a prisoner combined with BOP staff shortages and poor healthcare” puts vulnerable inmates at risk.

Washington Post, Covid deaths no longer overwhelmingly among the unvaccinated as toll on elderly grows (April 29, 2022)

Forbes, With COVID-19 Cases On Rise, Bureau Of Prisons Slowly Still Transferring Inmates Under CARES Act (April 27, 2022)

– Thomas L. Root

‘Disheartened’ BOP Director Tells Staff ‘Don’t Be Evil’ – Update for April 5, 2022

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

MANPOWER AND CORRUPTION WOES CONTINUE TO PLAGUE BOP
Carvajal advises BOP staff...
Carvajal advises BOP staff…

The indictment of a fifth Bureau of Prisons employee in connection with the ongoing sexual abuse scandal at FCI Dublin (California) has caused ‘disheartened’ outgoing BOP Director Michael Carvajal to remind all 36,000-plus BOP staff “that we ALL have a responsibility to protect staff and inmates by reporting wrongdoing of any kind, especially misconduct, and we must have the courage to do so.”

According to the indictment unsealed last Friday, Enrique Chavez, a Cook Supervisor/Foreman at Dublin, engaged in abusive sexual contact with inmates in October 2020. Chavez joins former Warden Ray Garcia, former Chaplain James Highhouse, Safety Administrator John Bellhouse, and recycling technician Ross Klinger as defendants in the unfolding FCI Dublin sex abuse scandal.

Chavez’s arrest came only weeks after eight members of Congress, including Rep. Eric Swalwell (D-CA) (whose district includes Dublin), demanded an investigation into allegations of abuse and misconduct at the prison.

Writing in Forbes last week, Walter Pavlo said, “The BOP has a substantive history of corruption, staff shortages and, recently, delays in implementation of The First Step Act… Tens of thousands of prisoners who believe they have earned credits are awaiting a backlogged BOP to determine when they will be released.”

paperwork171019Pavlo said, “I spoke with Mary Melek, a case manager at FDC Miami who had 364 prisoners on her caseload until a recent hire cut that in half, still over the recommended 150:1 ration. Melek expressed her frustration, ‘There are 5 augmented openings on a shift, openings where the BOP has planned augmentation, and that has pulled me away from my work’. The augmentation not only applies to case managers, but other workers, including health services where FDC Miami is at 56% of its staffing rate.”

Help could be on the way to the BOP in the form of money. The recently-passed FY2022 omnibus spending bill included $7.865 billion for BOP salaries and expenses, a $200 million dollar increase over the agency’s requested funding. According to a press release from AFGE National Council President Shane Fausey, the BOP is “expected to hire additional full-time correctional officers in order to reduce the reliance on augmentation and improve staffing beyond mission-critical levels in custodial and all other departments, including medical, counseling, and educational positions.”

President Biden’s proposed budget for next year, released last week, asks for even more: $8.18 billion “to ensure the health, safety, and wellbeing of incarcerated individuals and correctional staff; fully implement the First Step Act and ease barriers to successful reentry,” according to the DOJ.

bullshit220330The money, of course, does not address the recent spate of corruption. Carvajal said in last week’s internal communication to BOP staff that “the recent media attention regarding misconduct in the BOP as being characterized using phrases such as “cover-ups,” “sign of a larger problem” and “toxic culture of sexual abuse.” These phrases are not true characterizations of the vast majority of the staff who work in our facilities across the Nation.”

Of course not. That is, unless you read the inmate email I get. Walter Pavlo seems to feel the same, writing that “Carvajal could have noted that since his rising to the agency’s highest position” a House subcommittee investigation found that BOP “discipline and accountability is not equitably applied … For high ranking officers, bad behavior is ignored or covered up on a regular basis, and certain officials who should be investigated can avoid discipline.”

DOJ, Correctional Officer At FCI Dublin Charged For Abusive Sexual Contact With Female Inmate (March 23, 2022)

Pleasanton Weekly, Another guard at Dublin prison charged with sex abuse of inmate (March 28, 2022)

Forbes, ‘Disheartened’ Director Of Bureau Of Prisons Calls On Staff To Out Corruption (March 31, 2022)

DOJ, Department of Justice Fiscal Year 2023 Funding Request (March 28, 2022)

Forbes, Bureau Of Prisons Is Overworking Its Most Critical Staff Positions During First Step Act Implementation (March 31, 2022)

– Thomas L. Root

COVID Isn’t Over, And Neither Should Be Compassionate Release – Update for March 22, 2022

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

DON’T GIVE UP ON COMPASSIONATE RELEASE

“A triumphant President Joe Biden all but announced an end to the pandemic in the USA on Sunday… declared that the U.S. had achieved “independence” from the coronavirus…”

deadcovid210914Really? Is COVID over? Well, that quote would suggest it, except that Biden said that about nine months ago. A month after the Prez did his victory dance, COVID Delta blasted through FCI Texarkana, followed by the rest of the BOP. And that was only a prelude to Omicron, that at one point had 9,500 inmates sick at the same time.

As of last week, a surge in the new COVID variant BA.2 in Western Europe had experts and health authorities on alert for another wave of the pandemic in the USA. BA.2, even more contagious than the original strain, BA.1, is fueling the outbreak overseas, and will be here soon, experts say.  Last Sunday’s Times said, “Another COVID surge may be coming. Are we ready for it?”

At the same time, the number of prisoners in Bureau of Prisons custody increased by about 1,150 in the past month alone. Ohio State University law professor Doug Berman said in his Sentencing Law and Policy blog that he

assumes this new data reflects some ‘return to normal’ operations for the federal criminal justice system, with fewer COVID-related delays in cases and prison admissions (and many fewer COVID-related releases) producing this significant one-month federal prison population growth. But, whatever the particulars, I will not forget that candidate Joe Biden promised to ‘take bold action to reduce our prison population” and to “broadly use his clemency power for certain non-violent and drug crimes.‘ Fourteen months into his administration, I am unaware of any bold action taken by Prez Biden and he has still yet to use his clemency power a single time, let alone broadly.

quit201208Prisoner numbers are the only thing going up. About 6,200 BOP employees left the agency in the last two years, which works out to almost nine people a day. 8.7 employees departing every day during that time period. The BOP refuses to give precise current numbers, but Insider magazine reported that from July 2021 to March 2022, it hired fewer than 2,000 replacements.

A BOP employee survey last year found that since the pandemic began, the “majority of respondents reported feeling increased stress or anxiety at work and being asked to perform tasks outside their normal duties.” Nearly one in three respondents who answered that they were stressed from the job reported that they have considered leaving the BOP, according to the survey.

Last week, the Dept of Justice released the promised memorandum ordering U.S. Attorneys not to require defendants to waive their right to file compassionate release motions as a condition of getting a plea deal. Notably, the DOJ told U.S. Attorneys that “if a defendant has already entered a plea and his or her plea agreement included a waiver provision of the type just described, prosecutors should decline to enforce the waiver. “

All this means compassionate release probably is far from over, both because of more COVID and as a means of addressing overcrowding. In a lot of places, it has played a role in correcting harsh sentences that could not be imposed today.

But not everywhere. The 11th Circuit is infamous for refusing judges the discretion to use sentences that could not be imposed today as a reason for compassionate release. Last week, the 8th Circuit made clear it had joined the 11th.

Antonio Taylor was convicted of nine offenses, three of which were 18 USC § 924(c) violations. The § 924(c) law at the time required consecutive prisons terms of 5, 25, and 25 years for the violations years. Tony got sentenced to 60 years (720 months).

The First Step Act changed the law so that the harsh consecutive sentences could not be imposed. If James had been sentenced after First Step passed, he would have faced 18 years, not 60. Tony filed for compassionate release in 2020, arguing the harshness and unfairness of his sentence. Similar arguments have won in a number of other circuits, starting with the 2nd Circuit in September 2020’s Brooker decision.

compassionlimit220322The Circuit, following its February decision in United States v. Crandell, held that “that a non-retroactive change in law, whether offered alone or in combination with other factors, cannot contribute to a finding of ‘extraordinary and compelling reasons’ for a reduction in sentence under § 3582(c)(1)(A).”

As it stands now, a nonretroactive change in sentencing law can win a prisoner a sentencing reduction if he or she was sentenced in federal court in any of nine circuits. As for the other three, the inmate is out of luck. This cries for Supreme Court resolution.

Bloomberg, Biden Declares Success in Beating Pandemic in July 4 Speech (July 4, 2021)

Washington Post, A covid surge in Western Europe has US bracing for another wave (March 16, 2022)

Sentencing Law and Policy, Federal prison population, now at 154,194, has grown by well over 1100 persons in a short month (March 18, 2022)

Business Insider, Federal prison working conditions are getting worse despite Biden’s promise to improve conditions, staffers say (March 18, 2022)

DOJ, Department Policy on Compassionate Release Waivers in Plea Agreements (March 11, 2022)

United States v. Taylor, Case No 21-1627 (8th Cir., March 18, 2022)

– Thomas L. Root