Tag Archives: BOP

Stress and Angst Not Enough Injury to Justify Civil Suit Against the BOP – Update for March 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.

NO HARM, NO FOUL

dongarra220311Jordan Dongarra, a convicted bank robber, was designated to serve his sentence at a newly-opened BOP facility, USP Canaan in Pennsylvania. When he arrived, Officer Smith issued him an ID card and clothing that mislabeled him as a sex offender. Jordy protested, and asked for new ID and threads. Officer Smith refused, saying he did not care and that he “hopes you know how to fight… and use a knife.”

Branded by his ID and T-shirt, Dongarra tried to explain the situation to other prisoners. Out of fear, he skipped all his meals and shed lots of weight. He refused to go out for recreation. “All this made him feeble and unfocused,” the Court said. He filed an administrative remedy, a so-called BP-9, asking the Warden to fix things by giving him normal prison clothes and an ID without the “sex offender” label.

The Warden never answered Jordy’s BP-9. Nevertheless, a few weeks after he filed it, the prison finally replaced his ID card and T-shirt with duds and accessories more appropriate for, say, your ordinary bank robber.

money160118Jordan sued Officer Smith in an action brought under Bivens, asking for money damages and an injunction to order the prison not to do it again. The district court threw out the case, and Jordan appealed.

Last week, the 3rd Circuit upheld the dismissal. “The 8th Amendment bans cruel and unusual punishments,” the Circuit said. “When we parse his complaint, we see that Dongarra is alleging two distinct 8th Amendment wrongs. First, he challenges the conditions of his confinement: living in prison while branded a sex offender, he says, made him anxious and stressed. Second, he challenges the prison’s failure to protect him. Smith, he argues, was deliberately indifferent to the risk that other prisoners would assault a supposed sex offender.”

The 3rd said that Jordy’s conditions-of-confinement claim failed “because dubbing him a sex offender did not deprive him of a basic human need.” His “failure-to-protect” claim, however, did allege an 8th Amendment violation.

The problem with the “failure-to-protect” claim, the 3rd said, was that it fell short on actual injury: you can’t collect damages for an assault that never happened.

“Rights do not always have remedies,” the 3rd Circuit said. “Often, someone can violate a right without paying full compensation. For instance, a valid claim can be blocked by sovereign or qualified immunity. So too here. Dongarra claimed administrative and injunctive relief, but he cannot get damages for any past harm.”

taketheshot211021This is a tough lesson for inmates to absorb. All the time, I hear from people who want to sue – and promise that any lawyer I find for them to take the case will become fabulously rich on the damages – because the Bureau of Prisons delayed medical treatment or held them in quarantine too long or denied their units recreation time or some other complaint. The complaints are usually correct, but the inmates cannot point to any actual harm they suffered other than stress, aggravation or ennui.

But popular media accounts notwithstanding, you really do need to be damaged before you can collect money for it. Juries are never terribly sympathetic to inmate plaintiffs to begin with. Telling Joe and Jane Juror in essence that the BOP was mean to you and you were upset by it rarely results in jury awards. In Jordan Dongarra’s case, it did not even result in the right to bring the claim.

Dongarra v. Smith, Case No. 20-2872, 2022 U.S. App. LEXIS 5347 (3d Cir. Mar. 1, 2022)

– Thomas L. Root

Everything’s Running Backwards (Or Sideways) at the BOP – Update for March 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.

THE BOP’S COLLAPSING COVID UNIVERSE

hawking220303The famed physicist Stephen Hawking theorized that there would come a time when the universe stopped expanding and would start collapsing instead. When that happened, he said, time (and everything else) would run backward.

The BOP has made it happen. How else does one explain the fact that the total number of COVID tests done by the agency peaked at 129,677 on January 25, 2022, and has fallen ever since? As of last night, the BOP claimed to have tested 790 fewer people since April 2020 than it claimed to have tested a little more than a month ago.

At this rate, the BOP is “untesting” more inmates a day than it is testing.

This is not surprising. The total number of inmate COVID cases peaked a year ago in February and then began a steady decline that made keeping accurate records of how many BOP prisons had caught the virus since April 2020 impossible. The number dropped by 5,300 until just before Christmas. In other words, about 3% of the inmate population “uncaught” COVID in the last year.

How is this possible? Only Hawking knows…

Then there’s the problem with the official vaccine count. Forty-one BOP facilities claim to have vaccinated more than 100% of their inmates. For instance, FCI La Tuna (on the Texas-New Mexico state line) has an inmate population of 967. Yet as of last Friday it claimed to have vaccinated 1,239 inmates. To be sure, inmates come and go. Some transfer, some are released, some newbies arrive. But across the system, the BOP claims to have vaccinated more than 4,000 prisoners than it has in custody.

ratchet211108A year ago, the agency quietly adopted the voodoo standard that it would subtract from its inmate COVID total anyone who had gotten COVID while a BOP prisoner but later was released. Sort of like the person was never an inmate and the COVID case had never occurred. That metric was weird enough, apparently intended to obscure how badly the BOP COVID mitigation plan had failed. Ironically, the agency has seemed to go the other way on vaccinations: a prison counts an inmate vaccination on its tally long after the prisoner is released.

The BOP keeps its finger on the COVID scale. Its rule for recordkeeping is to adopt whatever standard that makes it look good, accuracy be damned.

The BOP claimed 459 inmates recovered from COVID between a week ago last Friday and last Wednesday. But then, only three recovered over the next three days. As of Friday, 1,253 prisoners and 1,019 employees were sick. As of last night, the number fell to 475 inmates and 671 staff still with COVID. The BOP said COVID remained in 113 facilities.

At least 305 inmates remain dead. There’s not much the BOP can do about those numbers. The BOP reported last week that two inmates, one at Tucson and one at FMC Lexington, have died of COVID. One got sick on January 14 and was quickly declared “recovered” on January 24. The second got sick on January 18, and “recovered” even more quickly, after only seven days.

Despite being declared “recovered… in accordance with the Centers for Disease Control and Prevention (CDC) guidelines,” as the BOP always defensively puts it, one prisoner went to the hospital eight days after recovery and died there. The other died in his cell.

The BOP currently reports that 70.7% of staff and 76.4% of inmates have been vaccinated. Both of those numbers are squishy for reasons already mentioned. (The total number of BOP employees (36,553) has dropped by 138 over the past few weeks).

Threatening to lock up BOP employees: Great for morale in an agency that can't hold on to workers...
Threatening to lock up BOP employees: Great for morale in an agency that can’t hold on to workers…

Remember a month ago, when a BOP employee gave two U.S. senators a tour of FCI Danbury after the top brass there refused them entrance? On Feb 11 Shaun Boylan, a BOP financial program specialist and vice president of the BOP employees’ union at Danbury, has filed a complaint with the BOP’s Equal Employment Opportunity Office claiming he has been repeatedly retaliated against for engaging in union activities, including giving Senators Richard Blumenthal and Chris Murphy (both D-CT) a tour of the facility in January.

Boylan said the harassment included his supervisor telling others that “I would be assigned to the phone room and that criminal charges are pending against me.”

The BOP said it “altered” the congressional tour to maintain COVID-19 protocols. Danbury FCI is currently the subject of a federal Occupational Safety and Health Administration complaint for its COVID management.

At this point, does COVID matter anymore? The Wall Street Journal suggests we’re not out of the woods yet. The paper said last week that a more infectious type of the Omicron variant, known as BA.2, “has surged to account for more than a third of global Covid-19 cases sequenced recently, adding to the debate about whether countries are ready for full reopening.” Health authorities are examining whether BA.2 could extend the length of Covid-19 waves that have peaked recently.

“We’re looking not only at how quickly those peaks go up, but how they come down,” World Health Organization epidemiologist Maria Van Kerkhove said. “And as the decline in cases occurs…we also need to look at: Is there a slowing of that decline? Or will we start to see an increase again?”

BOP Press Release, Inmate Death at FMC Lexington (February 24, 2022)

BOP Press Release, Inmate Death at USP Tucson (February 24, 2022)

CTInsider, Records: Danbury federal prison named in two complaints alleging work place issues, infrastructure problems (February 22, 2022)

Wall Street Journal, Fast-Spreading Covid-19 Omicron Type Revives Questions About Opening Up (February 23, 2022

– Thomas L. Root

Once Upon A Week Down In Washington – Update for February 28, 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.

THE POLS WERE BUSY LAST WEEK (OR NOT)

jackson220228Rocket Woman: Only 15 years ago, Ketanji Brown Jackson was an assistant public defender in Washington, DC. Six years later, she was a federal judge. Ten months ago, she was confirmed as a judge on the US Court of Appeals for the D.C. Circuit. Last week, her dizzying ride through the judiciary continued as President Joe Biden nominated her to take retiring Justice Stephen Breyer’s spot on the Supreme Court.

Picking Judge Jackson fulfills Biden’s promise to appoint a black woman to the high court. But she’s no token: Harvard Law (editor of the Harvard Law Review), a law clerk for Justice Breyer (whom she will replace), an attorney (and later vice-chair) at the U.S. Sentencing Commission, a public defender with one uncle who was a big-city police chief and another who was doing life on a federal drug charge (until he got clemency from Obama). Jackson would be the only Supreme Court justice with extensive Guidelines experience and the only one who ever did federal criminal defense work

There will be the usual bickering in the Senate leading up to her confirmation, but she’ll get confirmed: Sen. Charles Grassley (R-Iowa), the ranking minority member of the Senate Judiciary Committee expressed enthusiasm about Judge Jackson’s support for the First Step Act during last spring’s hearing on her appointment to the Court of Appeals (although he didn’t vote to confirm). But three other Republicans did.  All it takes is 51 votes in the Senate: the Democrats will provide 50, and Kamala Harris will break the tie if a Republican does not defect. At least one will.

The appointment is good news for federal inmates. Judge Jackson is reliably liberal, and she knows federal criminal law. As a Sentencing Commission member in 2011, she was passionate about equalizing the sentences for crack and powder. The Wall Street Journal said yesterday, “Supreme Court nominee Ketanji Brown Jackson would, if confirmed, be the first justice in decades to have worked as a lawyer representing poor criminal defendants, a background that could add a new perspective to the high court’s deliberations.”

That makes her the equal (if not superior) to any of the other eight Justices.

More Demands for BOP Accountability: As I noted last week, the drums on Capitol Hill continue to sound for the BOP. Senate Judiciary Committee chairman Sen Richards Durbin (D-Ill), Sen Grassley, and California Sens Dianne Feinstein and Alex Padilla (both D) sent a letter to Attorney General Merrick Garland and Deputy Attorney General Lisa Monaco demanding the Justice Department turn over a pile of information about employee misconduct and procedures in place to stem sexual abuse.

Associated Press reported that the letter “is the latest illustration of increasing scrutiny of the scandal-plagued bureau following the AP’s reporting. Last week, the Senate launched a bipartisan working group to focus on the federal prison system, and lawmakers have been introducing legislation to increase oversight of the nation’s 122 federal prisons.”

In a case of bad timing, the letter was sent to the AG the same day James T. Highhouse, the former chaplain at FCI Dublin, pled guilty in San Francisco federal court to five felonies relating to his work at the FCI-Dublin female prison in the Northern District of California. Highhouse admitted he sexually abused a Dublin inmate multiple times and then lied to the FBI about it.

BOPsexharassment191209In a separate report, the AP said “whistleblower” employees of the BOP say high-ranking prison officials are bullying them for exposing wrongdoing and threatening to close FCI Dublin if workers keep reporting abuse, even as members of Congress say they’re being stonewalled in efforts to pry information from what AP calls “the beleaguered bureau.”

AP reported, “The Bureau of Prisons’ proclivity for silence and secrecy has endured, workers and lawmakers say, even after an Associated Press investigation revealed years of sexual misconduct at the women’s prison — the federal correctional institution in Dublin, California — and detailed a toxic culture that enabled it to continue for years.”

EQUAL Act: Thursday, leading New York civil rights and criminal justice organizations sent a letter to Senate Majority Leader Chuck Schumer (D-NY) pushing him to bring the EQUAL Act (S.79) to a vote within the next month.

crackpowder160606The EQUAL Act will “finally and fully eliminate the racially unjust federal sentencing disparity between crack and powder cocaine offenses, one of the worst vestiges of the failed War on Drugs,” Black Starr reported. In September, EQUAL passed in the House by a 361-66 vote, supported by everyone from the Freedom Caucus on the right to the Progressive Caucus on the left. In the Senate, where the legislation was introduced by Senator Cory Booker (D-NJ), EQUAL currently has seven Republican and five Democrat cosponsors.

Up in Smoke: The Wall Street Journal reported last Tuesday that because of the “tough midterm election and divisions in Congress, the Biden administration is sidestepping the politically sensitive issue of loosening marijuana laws, even as the idea has gained broad public support.

“More than half of U.S. states have legalized cannabis use for some purposes,” the Journal said. “Lawmakers have proposed decriminalizing marijuana… Those promoting changes include a diverse range of political figures… If someone like myself and a progressive like Alexandria Ocasio-Cortez can find some common ground, it begs the question, why hasn’t the president acted?” Rep Dave Joyce (R-Ohio), told the Journal. Joyce, who has worked on decriminalization of pot, said, “The solutions are there. It’s just a matter of political will.”

marijuanahell190918The problem isn’t political will, it’s political ‘won’t’.” Major legislation to decriminalize cannabis is stuck “amid opposition from some Republicans and some moderate Democrats. President Biden hasn’t acted on his own campaign-trail promises to decriminalize marijuana and expunge criminal records of users. The White House said cannabis policy is under study, but declined to comment further.”

The MORE Act of 2021 (H.R. 3617) passed the House in September, but seems dead in the Senate.

More than two in three Americans support legalizing marijuana, according to a 2021 Gallup poll, up from one-half a decade ago. Still, as The Skimm reported last week, “while Americans largely want to legalize weed, it’s not a top priority for them either. Forty-three percent of US adults also reportedly have access to rec weed. So, the urgency to get the federal gov involved may not be very high.” What’s worse, The Skimm said, Biden has remained blunt about marijuana: “He doesn’t believe in legalizing it… Biden said he wants more research on marijuana’s effects before changing his stance. But he has previously supported decriminalizing weed (a hot take for someone who helped spearhead the country’s war on drugs).”

New York Times, Biden Picks Ketanji Brown Jackson for Supreme Court (February 25, 2022)

SCOTUSBlog.com, In historic first, Biden nominates Ketanji Brown Jackson to Supreme Court (February 25, 2022)

Wall Street Journal, Judge Ketanji Brown Jackson Would Bring Rare Criminal-Defense Experience to Supreme Court (February 27, 2022)

Associated Press, Senators push Garland to reform prisons after AP reporting (February 23, 2022)

The Hill, Former federal prisons chaplain pleads guilty to sexually abusing inmate (February 2, 2022)

Associated Press, Whistleblowers say they’re bullied for exposing prison abuse (February 23, 2022)

Black Starr News, Schumer Pressed To Pass Bill Addressing Crack\Cocaine Sentencing Disparity (February 25, 2022)

S.79, EQUAL Act

Wall Street Journal, Push to Relax Marijuana Laws Hits Roadblocks (February 22, 2022)

MORE Act of 2021, H.R. 3617

The Skimm, Breaking Down the Buzz: Why the US Isn’t Puff, Puff, Passing Marijuana Legalization (February 23, 2022)

– Thomas L. Root

Senators Decide BOP Needs Adult Supervision – Update for February 25, 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.

MIKE CARVAJAL’S LEGACY

adult220225The Associated Press reported last Friday that a bipartisan group of senators led by Jon Ossoff (D-GA) and Mike Braun (R-IN) has launched a working group “aimed at developing policies and proposals to strengthen oversight of the beleaguered federal prison system and improve communication between the Bureau of Prisons and Congress.”

Senator Ossoff said in a press release that the Senators will “examine conditions of incarceration in U.S. Federal prisons, protect human rights, and promote transparency.”

The AP says the task force – which calls itself the Senate Bipartisan Prison Policy Working Group – formed “following reporting by The Associated Press that uncovered widespread corruption and abuse in federal prisons.”

The chairman of the Senate Judiciary Committee, Senator Richard Durbin (D-IL) will be part of the group.

prisoncorruption2310825AP has called the federal prison system “a hotbed of corruption and misconduct… [that] has been plagued by myriad crises in recent years, including widespread criminal activity among employees, systemic sexual abuse at a federal women’s prison in California, critically low staffing levels that have hampered responses to emergencies, the rapid spread of COVID-19, a failed response to the pandemic and dozens of escapes.”

“The COVID-19 pandemic exposed serious weaknesses in our federal prison system, but also provided a blueprint for reform. Congress should take an active role in ensuring that BOP builds on the lessons of the pandemic to ensure the safety of incarcerated persons and the community, promote rehabilitation and reentry, and maximize alternatives to incarceration,” Kyle O’Dowd, Associate Executive Director for National Association of Criminal Defense Lawyers said. “The Prison Policy Working Group can open a bipartisan dialogue on these issues and lead the way in creating a more humane and rational prison system.”

accountable220225David Safavian, General Counsel, American Conservative Union, said, “It is high time that Congress addresses issues facing both federal prisoners and correctional officers alike. The newly created Senate Prison Policy Working Group must help develop policies that strengthen public safety, advance human dignity, and ensure that the prison bureaucracy is held accountable for the results it delivers to the taxpayers.”

Ossoff and Braun recently introduced legislation recently that will require the director of the BOP to be confirmed by the Senate, legislation co-sponsored by a bipartisan group of senators including Senate Minority Leader Mitch McConnell (R-KY).

Associated Press, Senate launches group to examine embattled US prison system (February 17, 2022)

Senator Jon Ossoff, Sens. Ossoff, Braun Launch Bipartisan Working Group to Examine U.S. Prison Conditions, Promote Transparency (February 17, 2022)

The Hill, Senate group to examine federal prison system after corruption, abuse allegations (February 18, 2022)

– Thomas L. Root

Playing with COVID Numbers – Update for February 24, 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.

BOP DECLARES COVID RECOVERIES AS MEDIA BLAST MANAGEMENT

The BOP declared another 2,800 inmates cured last week, declaring at week’s end that 1,717 prisoners and 1,415 staff still have the virus. As of last night, the number was down to 1,257 inmates and 1,397 staff. The BOP is reporting COVID at 125 facilities. The agency reported no new deaths.

deadcovid210914There isn’t a lot of reason to trust the BOP’s stats. For instance, 2,500 inmates “recovered” over Valentine’s Day weekend, but from the following Wednesday to Friday, only two more were cured. Over last weekend, another 450 were healed. But yesterday, only one was cured. As of last Tuesday, the agency had performed 129,251 COVID tests on inmates since 2020, but as of last night, only 128,895 had been done. The number of tests waiting to be processed was 94 for 10 days in a row ending a week ago Tuesday and has been 136 every day since. For the same period a year ago, the number was never the same from February 5 through February 24, fluctuating between a high of 1,131 and a low of 695.honeymoon220224

A reasonable person could conclude that the stats are being made up.

But does it matter? After all, COVID is finally over. Or maybe not, as COVID variant BA.2 vies with Vladimir Putin for headlines.

In other news, if the BOP ever enjoyed a media honeymoon on its COVID management, that time has passed. CNN last week savaged the BOP’s COVID response in a story based on inmate deaths at FPC Alderson:

The deaths of… three women imprisoned in West Virginia reflect a federal prison system plagued by chronic problems exacerbated by the pandemic, including understaffing, inadequate medical care, and few compassionate releases. The most recent statistics from the Federal Bureau of Prisons report 284 inmates and seven staff members have died nationwide because of covid since March 28, 2020. Medical and legal experts say those numbers are likely an undercount, but the federal prison system lacks independent oversight… The Alderson inmates and their families reported denial of medical care, a lack of covid testing, retaliation for speaking out about conditions, understaffing, and a prison overrun by covid. Absences by prison staff members sickened by the virus led to cold meals, dirty clothes, and a denial of items like sanitary napkins and clean water from the commissary… In an email, BOP spokesperson Benjamin O’Cone said the agency does not comment on what he called “anecdotal allegations.”

So the BOP manipulates the stats, and it ignores the anecdotes. Controlling the information and disparaging the information you can’t control – it’s the BOP’s mission statement.

healthcare220224Meanwhile, Oregon Public Broadcasting continues its coverage of a suit against the BOP brought by FCI Sheridan inmates, reporting that “dire conditions inside the federal prison in Sheridan, Oregon, have not improved over the course of the pandemic and numerous medical requests from inmates inside the facility continue to go unaddressed, according to Lisa Hay, Oregon’s federal public defender, in a recent filing. “What’s most dismaying to me is that we’re hearing the same kinds of complaints for two years and I feel somewhat helpless,” Hay told OPB in an interview a week ago. “People are dying, people are being harmed, people are being harmed psychologically and physically.”

“The system of care at the FCI Sheridan does not allow for adequate access to care,” Michael Puerini, M.D., a corrections medical care expert, stated in an inspection report filed last month. “Access to care is a fundamental aspect of the care system. Without access to care, adults in custody are essentially left without healthcare, much to their peril.”

Puerini wrote that “The Sheridan facility, at the time of our visit in September, was not following CDC guidelines regarding care of Covid patients in that patient who had tested positive for Covid were not being checked on a daily basis, as specified in the guidelines.”

CNN, Covid-19 rips through West Virginia women’s prison as federal agency takes heat (February 18, 2022)

Wall Street Journal, Fast-Spreading Covid-19 Omicron Type Revives Questions About Opening Up (February 23, 2022)

Oregon Public Broadcasting, Inmates at Oregon’s only federal prison report dire medical care (February 11, 2022)

Status Report, Stirling v. Salazar, Case No. 3:20-cv-00712 (February 4, 2022, ECF 98)

– Thomas L. Root

Emergency Continues, And So Does CARES Act Home Confinement – Update for February 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.

BOP CARES ACT AUTHORITY EXTENDED

caresbear210104The BOP’s CARES Act authority to place inmates in home confinement expires, according to the law, 30 days after the end of the national pandemic emergency. That emergency was originally declared by President Trump and extended by President Biden. Biden’s last extension was set to expire March 1, 2022, by operation of 50 USC § 1622(d).

Last Friday, Biden extended the national emergency for another year. He said, “The COVID-19 pandemic continues to cause significant risk to the public health and safety of the Nation. For this reason, the national emergency declared on March 13, 2020, and beginning March 1, 2020, must continue in effect beyond March 1, 2022.”

Section 12003(b)(2) of the CARES Act provides that

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.

So the BOP authority continues as long as there’s a national emergency and the Attorney General “finds that emergency conditions will materially affect the functioning of the Bureau.” Attorney General William Barr made that finding on March 26, 2020, and again a week later.

home210218What this means is the BOP’s authority to place people in home confinement under the CARES Act will continue for another year unless Attorney General Merrick Garland would decide the BOP no longer needs to decrease population. Given that the BOP must still absorb another 6,085 federal prisoners from private prisons, that inmate totals are trending upward again, and that the BOP is still understaffed, it is unlikely that the AG will abandon the CARES Act any time soon.

The White House, Notice on the Continuation of the National Emergency Concerning the Coronavirus Disease 2019 (COVID-⁠19) Pandemic (February 18, 2022)

– Thomas L. Root

Sample-ing a First Circuit Compassionate Release Win – Update for February 21, 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.

LET’S GO, BRANDON…

jrhigh220221I’m no fan of the current political meme “Let’s go, Brandon.” I think we can be critical of the incumbent President (or the former President, for that matter) without sounding like a lot of 7th-grade boys sitting in the back of the school bus.

But today, I mean it literally. Vermont-based Federal post-conviction attorney Brandon Sample (who has no connection with this blog other than the fact of his dedication to criminal defense and his skill in winning against sometimes-substantial opposition) swung for the fence on a First Circuit compassionate release appeal. Last week, he hit a walk-off homer.

Brandon’s client, Juan Ruvalcaba, was convicted of a sprawling drug-distribution conspiracy over 15 years ago and sentenced to life in prison. “Life” was the sentence that the 21 U.S.C. § 846 count required at that time because of Juan’s prior drug convictions.

In 2020, Juan asked his court for compassionate release under 18 U.S.C. § 3582(c)(1)(A)(i) because of COVID and his medical condition. He also argued that the fact that the mandatory minimum sentence for his drug conviction had been changed by the First Step Act – being dropped from life to 25 years – was an additional extraordinary and compelling reason for a sentence reduction.

henhouse180307A § 3582(c)(1)(A)(i) motion, for those of you who just came in, requires that a moving party show that there is one or more “extraordinary and compelling reason[s]” for a sentence reduction, and that, after considering the sentencing factors of 18 U.S.C. § 3553(a), a reduction is warranted. Time was only the Bureau of Prisons could bring such motions on behalf of inmates – sort of like letting the fox decide which chickens in the henhouse would be released to go “free-range” – but First Step changed that to let inmates file for compassionate release on their own.

The Sentencing Commission has defined what facts may constitute “extraordinary and compelling” reasons in a Policy Statement (USSG §1B1.13). However, because the Commission has been out of business for lack of a quorum since First Step changed the compassionate release statute in December 2018, the Policy Statement is still written as though only the BOP director is doing all of the filing.

Juan’s district court disagreed that the First Step change to his mandatory minimum could be an extraordinary and compelling reason for compassionate release. What’s more, the court held that it was obligated to follow the Sentencing Commission Policy Statement, which did not identify sentence length or a subsequent non-retroactive change in the sentencing statute as elements justifying a sentence reduction.

Brandon took Juan’s appeal to the 1st Circuit, and last week, that court joined a majority of other federal courts of appeal in holding that § 1B1.13 does not apply to prisoner-filed compassionate release motions. What’s more, the 1st Circuit ruled that a district court was free to consider that the prisoner is serving an over-long sentence that would not be mandatory had it been imposed after the First Step Act.

“The text of the current policy statement makes pellucid that it is ‘applicable’ only to motions for compassionate release commenced by the BOP,” the Circuit ruled. “To find the existing policy statement “applicable” to prisoner-initiated motions, we would need to excise the language referring to motions brought by the BOP. That would be major surgery and undertaking it would be well outside our proper interpretive province…. We may not ‘blue pencil’ unambiguous text to divorce it from its context.”

bluepencil220221The appeals court admitted that someday, the Sentencing Commission will be back in business and probably make § 1B1.13 relevant in a First Step world. Then, “district courts addressing such motions not only will be bound by the statutory criteria but also will be required to ensure that their determinations of extraordinary and compelling reasons are consistent with that guidance.” But until then, compassionate release will be interpreted “through the lens of the statutory criteria, subject to review on appeal.”

The 1st Circuit also held that an excessive sentence could be a reason for a sentence reduction, at least where a subsequent but non-retroactive change in the law had lowered a mandatory minimum. “Our view that a district court may consider the FSA’s prospective amendments to sentencing law as part of the ‘extraordinary and compelling’ calculus fits seamlessly with the history and purpose of the compassionate-release statute. In abolishing federal parole, Congress recognized the need for a ‘safety valve’ with respect to situations in which a defendant’s circumstances had changed such that the length of continued incarceration no longer remained equitable.”

Such a safety valve should “encompass an individualized review of a defendant’s circumstances and permit a sentence reduction — in the district court’s sound discretion — based on any combination of factors (including unanticipated post-sentencing developments in the law),” the Circuit ruled. Thus, a district court, reviewing a prisoner-initiated motion for compassionate release in the absence of an applicable policy statement, may consider any “complex of circumstances raised by a defendant as forming an extraordinary and compelling reason warranting relief.”

Juan still has to sell his district court on the wisdom of granting any sentence reduction on remand, but – judging from his appellate win – he probably has the lawyer who can do it, if anyone can. Go, Brandon!

United States v. Ruvalcaba, Case No. 21-1064, 2022 U.S.App. LEXIS 4235 (1st Cir., February 15, 2022)

– Thomas L. Root

Senate Takes on BOP, and Other Short Rockets – Update for February 18, 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.

rocket-312767

Some short takes to end the week:

Mike Carvajal’s Legacy: The Associated Press yesterday reported that a bipartisan group of senators, led by Jon Ossoff (D-Georgia) and Mike Braun (R-Indiana) has launched a working group “aimed at developing policies and proposals to strengthen oversight of the beleaguered federal prison system and improve communication between the Bureau of Prisons and Congress.”

prisoncorruption2310825Giving itself a well-deserved victory lap, the AP says the task force – which calls itself the Senate Bipartisan Prison Policy Working Group – formed “following reporting by The Associated Press that uncovered widespread corruption and abuse in federal prisons.”

The chairman of the Senate Judiciary Committee, Sen. Richard Durbin (D-Illinois) also will be part of the group. I’m hoping to see Senator Chuck Grassley (R-Iowa)

AP called the federal prison system “a hotbed of corruption and misconduct… [that] has been plagued by myriad crises in recent years, including widespread criminal activity among employees, systemic sexual abuse at a federal women’s prison in California, critically low staffing levels that have hampered responses to emergencies, the rapid spread of COVID-19, a failed response to the pandemic and dozens of escapes.”

Advocates from across the spectrum lauded the announcement. “The COVID-19 pandemic exposed serious weaknesses in our federal prison system, but also provided a blueprint for reform. Congress should take an active role in ensuring that BOP builds on the lessons of the pandemic to ensure the safety of incarcerated persons and the community, promote rehabilitation and reentry, and maximize alternatives to incarceration,” Kyle O’Dowd, Associate Executive Director for National Association of Criminal Defense Lawyers said. “The Prison Policy Working Group can open a bipartisan dialogue on these issues and lead the way in creating a more humane and rational prison system.”

David Safavian, General Counsel, American Conservative Union, said, “It is high time that Congress addresses issues facing both federal prisoners and correctional officers alike. The newly created Senate Prison Policy Working Group must help develop policies that strengthen public safety, advance human dignity, and ensure that the prison bureaucracy is held accountable for the results it delivers to the taxpayers.”

More BOP accountability… Ironically, that may be BOP Director Mike Carvajal’s legacy.

Associated Press, Senate launches group to examine embattled US prison system (February 17, 2022)

Senator Jon Ossoff, Sens. Ossoff, Braun Launch Bipartisan Working Group to Examine U.S. Prison Conditions, Promote Transparency (February 17, 2022)

And This is Kind of What the Senators Are Talking About: A BOP employee pleaded guilty Thursday to charges he sexually abused at least two inmates at FCI Dublin, the first conviction in a wave of arrests resulting from what prisoners at the women’s facility and employees called “the rape club.”

sexualassault211014The latest, a recycling technician, is one of four employees, including the warden and chaplain, who’ve been arrested for sexually abusing Dublin inmates. The Associated Press said last week that several other Dublin workers are under investigation.

The employee pled guilty to three counts of sexual abuse of a ward. Sentencing guidelines in similar cases have ranged from three months to two years, the AP said. The employee, on administrative leave since last April, remains “currently employed with the Bureau of Prisons,” the agency said last Friday. He had been allowed to transfer to another BOP facility while under investigation.

The AP published results of its investigation of FCI Dublin a week ago, saying it had found “a permissive and toxic culture at the Bay Area lockup, enabling years of sexual misconduct by predatory employees and cover-ups that have largely kept the abuse out of the public eye.” Inmates told AP they had been subjected to years of “rampant sexual abuse by correctional officers and even the warden, and were often threatened or punished when they tried to speak up.”

Federal News Network, Worker pleads guilty to abusing inmates at US women’s prison (February 11, 2022)

Associated Press, AP investigation: Women’s prison fostered culture of abuse (February 6, 2022)

Violent Offender Recidivism: The US Sentencing Commission last week released a study suggesting that violent federal offenders committed new crimes at double the rate of nonviolent offenders.

welcomeback181003Over an 8-year period, 64% of violent offenders released in 2010 were rearrested, compared to 38% of non-violent offenders. The median time to rearrest was 16 months for violent offenders and 22 months for non-violent offenders. What’s more, while recidivism dropped with age, in all categories violent offender committed new crime at a higher rate than nonviolent. For ages 60+, violent offenders’ recidivism rate was 25%, compared to 12% for nonviolent.

Violent offenses were defined based on the sentencing guidelines applied. By the definitions used, 9% of federal prisoners are serving time for violent crimes and 34% have prior violent-crime convictions.

US Sentencing Commission, Recidivism of Violent Federal Offenders Released in 2010 (February 10, 2022)

– Thomas L. Root

Just When You Thought It Was Safe To Stay At Home… – Update for February 17, 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.

BUREAU OF PRISONS MUDDIES THE WATER ON CARES ACT PRISONERS REMAINING AT HOME

A BOP letter responding to a request from Rep. Sheila Jackson Lee (D-Texas) last week has renewed concern that CARES Act home confinees aren’t out of the woods yet.

muddywaters220217You may recall that the CARES Act, gave BOP the authority to send medically vulnerable prisoners to home confinement because of COVID. Since CARES passed in March 2020, the BOP has sent about 9,000 prisoners home, and of those – according to the BOP – only three have been returned to prison for committing new crimes.

However, despite the success of the program, the Department of Justice Office of Legal Counsel issued an opinion in the dying throes of the Trump Administration that when the pandemic ended, all of those folks – who had reconnected with families, gotten jobs, and generally reacclimated to society – would have to go back to prison. There was near-universal condemnation of the opinion, but last July, the newly-installed Biden people at DOJ offered as the Trumpian opinion was probably right.

flipflop170920Then, in December (with the President looking for some kind of criminal justice “win” to placate his progressives), CARES Act people rejoiced when the OLC reversed the January 2021 opinion. In fact, the jubilation was so great that none of the celebrants seemed to notice that the BOP had sent a memorandum to OLC a few days before saying that if return to prison was not mandatory, the agency planned to develop a plan to evaluate “which offenders should be returned to secure custody.

“Which offenders should be returned” is one of those compound statements, necessarily assuming that some of the CARES Act people should be returned. Some people are now taking note of just how ominous the statement is, and are asking what the BOP means by it.

“Sentence length is likely to be a significant factor,” the memo from BOP’s Office of General Counsel said, “as the more time that remains will provide the agency a more meaningful opportunity to provide programming and services to the offender in a secure facility. The nature of the sentence imposed, the interests of the prosecuting U.S. Attorneys’ Office, the potential impact on any victims or witnesses, and deterrence are other potential factors for the criteria BOP would develop. It is likely that inmates that have longer terms remaining would be returned to secure custody, while those with shorter terms left who are doing well in their current placement would be allowed to remain there, subject to the supervisory conditions described above.”

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Asked by two dozen other members of Congress to clarify, the BOP last week said it was preparing regulations that would be adopted “at the appropriate time.” Until then, the letter said, “we cannot speak to specifics.”

When he appeared before the House Subcommittee on Crime, Terrorism and Homeland Security two weeks ago, BOP Director Michael Carvajal said the BOP is “committed to returning people to society” and his agency “follows the laws that have been implemented and continue to do so.”

Right, Mike.

KXAN-TV, What will happen to inmates released under CARES Act? Prison officials vague (February 8, 2022)

BOP, Memo on CARES Act Return Authority (December 10, 2022)

BOP,  Letter to Rep. Bonnie Watson Coleman (February 7, 2022)

– Thomas L. Root

‘Statistics Don’t Lie’ on BOP’s CARES Act Failings – Update for February 15, 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.

FORBES DRILLS INTO BOP’S CARES ACT RESPONSE TO COVID

Hanlon’s razor may have started as a joke, but humor reveals truth that straight exposition often obscures.

incompetent220215Ironically, given the 7th Circuit’s Barbee holding (see yesterday’s post), Forbes magazine last week published the deepest dive into BOP COVID data yet, and asked whether the agency’s “reaction to COVID-19 and the implementation of the First Step Act… can be attributed to the government wanting to keep prisoners locked down and maintain jobs or a deeper, underlying problem.”

A CDC study at FCI Texarkana last summer, Forbes notes, “demonstrated the potential for COVID-19 outbreaks in congregate settings including correctional and detention facilities, even among resident populations with high vaccination rates. It turns out that even those who are vaccinated are prone to being reinfected if they are in tight living quarters with those who become infected and are not vaccinated. Prisons present an environment where people are exposed to higher doses of infection that can overwhelm their dose of vaccine protection.”

Relying on data from Mark Allenbaugh (a former Sentencing Commission attorney) at SentencingStats.com, Forbes found that while there was an uptick in home confinement to about 5,400 prisoners in early summer 2020, “since then, that number has remained relatively flat, meaning that the elderly or sick inmates, who could be transferred to home confinement, have stayed in prison. In fact, the overall prison population, which bottomed in early 2021, has increased by more than 20,000 in the past year.”

What’s more, Forbes said, “the BOP’s COVID infection rates among inmates are also far worse than what the BOP is reporting and their own figures reflect that.” Allenbaugh said, “The BOP simply is not testing prisoners to determine if or when they are recovered. Rather, they are just assuming recovery after approximately 10 to 14 days. The rate of drop in infection among prisoners cannot be otherwise explained, particularly if you compare the trends between prisoners and staff. The problem, therefore, is that infectious prisoners are being returned to the general population spreading the infection even more.”

COVIDTesting220215Want proof? The BOP itself admits to only testing 13,537 times since last July. That’s about one out of every ten inmates once in 7-1/2  months.

Others echo this criticism. While data on the medical isolation rate, facility vaccination rate, and community transmission rate are all available on the prison bureau’s website, advocates, including Corene Kendrick (deputy director of the ACLU National Prison Project)and Joshua Manson, a researcher with the UCLA Law COVID Behind Bars data project, say most of the information on how many people have been infected with, or died of, the virus is inaccurate. “They’re not being fully transparent,” Manson told Capital News Service last week. “They’re sort of just asking the public to trust them when they’ve really given the public no reason to trust them. There have been enormous numbers of people who’ve been infected in the Bureau of Prisons’ custody…but we know that the actual number is considerably higher than that.”

Forbes also reported the numbers of prisoners that remain to be fully vaccinated plus those who need booster shots are much higher than the BOP has claimed. “While the BOP touts that its vaccination rates are near 90%, that includes those who have received only one shot, which we all know is not effective enough.” Allenbaugh also cited misrepresentations in BOP vax data (as I have noted in a prior newsletter), that institutions claim more vaccinated inmates than their total population.

Manson agreed, complaining the BOP website has a category for “fully vaccinated” inmates, but that number doesn’t include the number of people who have not yet gotten a booster. “Now, I don’t really think that you can call someone fully inoculated right now if they haven’t received the booster,” he said.

Part of the idea behind the CARES Act was to reduce prison populations. But Forbes reported that BOP facilities were at an average of 94.3% capacity in July 2020, 18 months later, they’re at an average of 98.8% capacity, with 93 institutions over their rated capacity. This is due in part to Biden’s closure of private prisons, resulting in “thousands of prisoners… now being crowded into BOP-run facilities.”

statistics220215Forbes said, “A new BOP director has not yet been appointed, but one cannot be appointed soon enough to change the poor management and deception of those currently in charge. It will take a monumental effort to change an organization that is failing the prisoners it houses and the employees who are becoming increasingly frustrated. The statistics don’t lie.”

The need for a longer-term solution is becoming more obvious, inasmuch as COVID will “continue to be a problem for incarcerated people, even as the world tries to move on,” according to Wanda Bertram of the Prison Policy Initiative. Public officials who have declared COVID endemic are “basically admitting that prisons are going to be more dangerous in terms of health risks than they’ve been before,” Bertram said.

Forbes, Statistics Show Federal Bureau Of Prisons Unable To Implement Key Policies During Crisis (February 7, 2022)

CDC, Outbreak of SARS-CoV-2 B.1.617.2 (Delta) Variant Infections Among Incarcerated Persons in a Federal Prison — Texas, July–August 2021 (September 24, 2021)

Front Royal, Virginia, Examiner, Lawmakers, families, advocates challenge handling of COVID in federal prisons (February 11, 2022)

North Carolina Health News, Breaking point: What is the future of COVID and incarceration? (February 10, 2022)

– Thomas L. Root