Tag Archives: CARES Act home confinement

Will BOP Director Carvajal Be The Next One to Be Sent Home? – Update for June 29, 2021

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

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

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

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

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

shocked191024Mismanagement at the BOP? I’m shocked.

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Welcome to the culture of the BOP, Your Honor.

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

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

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

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

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

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

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

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

– Thomas L. Root

DOJ Eases CARES Act Home Confinement Eligibility – Update for April 19, 2021

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

DOJ RELAXES PATTERN SCORE LIMITATION FOR CARES ACT HOME CONFINEMENT

Bureau of Prisons Director Michael Carvajal last Thursday told the Senate Judiciary Committee that the Dept of Justice has modified the CARES Act home confinement criteria to qualify people whose PATTERN recidivism scores are “low” for home confinement.

release160523A memorandum apparently has been issued, because in a FAMM press release issued on Friday, FAMM president Kevin Ring said “We’re grateful that the new administration heeded the widespread calls to make more people eligible for home confinement. The original criteria were too narrow.”

Although I tried Friday and over the weekend to obtain a copy of the memo, I was not able to. The Ring statement suggests that more than one standard may have changed, but nothing else has been confirmed. I have heard a rumor as to what that change might have been, but I try not to deal in rumors, so I am awaiting confirmation.

The DOJ decision to expand CARES Act home confinement at this time suggests that the Administration does not intend to stop COVID home confinement placement anytime soon, despite the fact that all inmates will have access to vaccine within the next month. Carvajal told the Committee, “We are working to get as many people as are appropriate out within the criteria we are given.”

Sen Charles Grassley (R-Iowa) complained to Carvajal that the BOP’s use of “home confinement fails to comply with the First Step Act.”

mismanagement210419Committee Chair Richard Durbin (D-Illinois) was even blunter, asking Carvajal whether he had been directed to make eligibility for CARES Act home confinement as restrictive as possible. He said of the 230 BOP inmate COVID deaths, “These were preventable deaths. It is clear that the Bureau has been far too rigid in approving transfers to home confinement and to approve compassionate release. This is part of a broader issue of mismanagement.”

Carvajal told the Committee that the BOP, which has about 4,500 prisoners on home confinement under the CARES Act, has always followed DOJ guidance. No one asked him about the BOP’s own gloss on those criteria, which was the April 22, 2020, BOP memo requiring 50% of the sentence to be served (a standard from which the BOP said it could deviate “in its discretion,” if, for example, your name is Paul Manafort or Chaka Fattah).

Carvajal said the home confinement program has been a success. Right now, over 4,500 inmates are at home under the CARES Act, while only 151 have been returned to prison, 26 of which for escape from monitoring, and only three for new crimes (only one of which was violent).

return161227Many Committee members expressed dismay at the January 15 DOJ Office of Legal Counsel opinion that CARES Act confinees have to return to prison when the pandemic ends. Carvajal said about 2,400 of the CARES Act confinees have more than a year left on their sentences, and about 310 of those have more than five years to do. He said the BOP just wants guidance: “I ask that the statute be changed, or that we work with the DOJ… I don’t want somebody to believe that the Bureau of Prisons somehow doesn’t want to let someone out.”

But if the confinees are sent back, Carvajal said the BOP is prepared to handle the influx. Not everyone agrees. “We don’t have the staff,” Council of Prison Locals Southeast Regional Vice President Joe Rojas told Reuters. “We are already in chaos as it is, as an agency.”

Durbin and Grassley said they would ask the new Attorney General to withdraw the January OLJ memorandum, or – if that failed – they would seek to change the statute.

Courthouse News Service, Federal Prisons Flunked the Pandemic, Senators Say (April 15, 2021)

Reuters, U.S. has no plans to order inmates released in pandemic back to prison-official (April 15, 2021)

Reason, Pressure Grows on Biden To Rescind Memo That Would Send Thousands Released on Home Confinement Back to Federal Prison (April 16, 2021)

FAMM, FAMM releases statement on Department of Justice expanding home confinement (April 16, 2021)

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

– Thomas L. Root

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

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

LOBBYING EFFORT ON CARES ACT HOME CONFINEMENT MAY BE BEARING FRUIT

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

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

hawley2100416

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

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

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

home190109FAMM president Kevin Ring told The Appeal that those who were released did not expect to have to return to prison. “These folks came home and were told, ‘You’re not going to have to come back,’” Ring said. “They reunited with their families. Some of them have kids who they said, ‘I’m home.’ They said, ‘Do you have to go back, Dad?’ ‘No.’ So this changes everything.”

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

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

home210218My take on Carvajal’s position (for what it’s worth) is that his bias leans toward leaving people who have complied with their home confinement terms at home. He said repeatedly that the BOP’s mission was to successfully return people to the committee, and as long as home confinees are successful at home, there was nothing wrong with leaving them there.

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

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

FAMM Petition

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

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

– Thomas L. Root

Some Reform Advice for Uncle Joe – Update for March 25, 2021

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

HOW BIDEN CAN REFORM CRIMINAL JUSTICE

Sometimes, it’s hard to remember the three things my wife wants me to pick up at the local IGA. For that reason, I have empathy for our septuagenarian President trying to wrap his head around the 14 steps that law professors Mark Osler (a clemency expert) and Rachel Barkow (former Sentencing Commission member) proposed last week that he take to reform criminal justice.

henhouse180307Writing in The Appeal, the profs argued (among other things) that “Biden inherits a clemency crisis. There are currently more than 15,000 petitions waiting for an answer, having piled up over the course of the Trump presidency… The current structure bears not one but two fatal flaws: It is overly bureaucratic and is a captive of the deeply conflicted DOJ.” It’s no secret that the fox has been guarding the henhouse – too much of clemency decision-making is embedded in the Department of Justice, the very institution that sought the too-long sentences in the first place and is thus inclined to say no to requests to overturn its initial judgments.

They also called on Biden to reform how the BOP processes sentence reduction motions filed pursuant to 18 USC § 3582(c)(1)(A)(i), the so-called compassionate release motions. “DOJ needs to shift course,” Barkow and Osler said, “particularly during the pandemic. It should identify elderly and infirm people in prison for release — not merely home confinement — and, at a minimum, it should support their release when requested.”

In addition, they argued the Administration should make CARES Act home confinement permanent for those who have been sent there during the pandemic, and that the DOJ commit to programming that allows people in prison to earn time off their sentence after participating in programming. “During the Trump Administration,” they said, “BOP proposed a rule that would block reduction eligibility for far too many people, make it too difficult to earn credits, and far too easy to lose them. While public comment on that proposal closed on January 25, it is not too late for DOJ to shift course and propose a different rule that makes this programming—and therefore release eligibility—as widely available as possible.”

social210325Most significantly, they argued that “flawed compassionate release and First Step Act implementation are emblematic of larger problems at the BOP. Nearly everyone outside of government who deals with the BOP finds it to be dysfunctional; it’s inefficient, overly bureaucratic, and prone to cruelty.” They propose legislation to shift the BOP to the Department of Health and Human Services. “In the end, the work of the BOP is to not only securely detain people but to prepare them for life after incarceration. They are much better at the first task than the second. A shift to a department dominated by social work would help change the culture that produces the BOP’s current problems.”

Along with that, they argued, the BOP needs to do a better job of the basic “blocking and tackling in their field, and that starts with ensuring adequate staffing throughout the system. There needs to be additional resources for mental health needs, and even for basic issues like ensuring there is a state ID for every person in prison when they are released.”

The Appeal, 14 Steps Biden’s DOJ Can Take Now to Reform America’s Criminal Legal System (March 15, 2021)

– Thomas L. Root

BOP Solves COVID Problem By Not Looking For It – Update for March 9, 2021

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

BOP RUNS A REVERSE ON COVID TESTING


The BOP COVID numbers kept plummeting last week, ending the day yesterday with 783 sick inmates, down 46% in a week. But, strangely enough, staff COVID numbers remain stubbornly high at 1,569, nearly at the level of a week before. COVID is still in 126 BOP facilities.

reverse210309

For over 10 months, inmate COVID cases always exceeded staff cases, once by a factor of five. But on Feb 11, the number of staff cases passed the number of inmate cases for the first time. Last Friday, it was 100% higher.

This may be why: Last April, the BOP warned its increased inmate testing program would “increase the number of COVID-19 positive tests reflected on the BOP’s… public website.” Now, someone at Central Office has figured out that the obverse is equally true: less testing decreases the number of inmate COVID cases.

From Aug 1 through Feb 15, the BOP averaged 331 tests a day. But since Feb 15, the testing rate has fallen dramatically. Last week, the daily average was 44 tests a day. Yesterday, the BOP reported only 32 inmate tests in the entire system.

It’s not like the BOP has run out of people to test. Its own numbers show that about 45,000 inmates have never been tested. The current positivity rate of 44% – meaning that 44 out of 100 inmates tested had the virus – suggests about 20,000 undetected cases are still in the system.

covidtest200420The BOP does not control the staff COVID numbers: staffers get their own tests. So the inmate number, which the BOP controls, keeps falling. The staff number it does not control continues to reflect reality.

The BOP’s numbers last Friday showed that 41% of the staff have gotten the COVID vaccine, while only 8.4% of inmates have been inoculated. Only 72% of all BOP facilities report receiving the vaccine, with FCI Marianna having the highest percentage of inmates vaccinated, 53.5%, while three reporting facilities – Seatac, Miami, and Devens – report no inmates have taken the shot. A total of 2,233 inmates (1.5% of all inmates) were vaccinated last week.

The BOP told a Connecticut federal court last week (in a case involving FCI Danbury) that inmates who decline vaccinations without a documented medical reason will not be given further consideration for CARES Act home confinement. The BOP said it would consider home confinement for inmates who accept vaccinations, up until the time they are fully inoculated (usually two weeks after receiving the second dose).

return161227An article in The Regulatory Review argued the Dept of Justice’s January legal opinion that people in home confinement had to be recalled to federal prisons after the pandemic ended is flawed: “What the CARES Act limits to the covered emergency period is the Bureau Director’s authority to lengthen the permissible amount of time that people can spend in home confinement. Once a person’s home confinement period is properly lengthened by the Bureau — during the emergency, when the Bureau has the authority to do so — nothing in the law requires that someone’s period of home confinement must be shortened once the pandemic is over. The statute only limits when the Bureau of Prisons has authority to move people into home confinement for longer durations of their sentence.”

Finally, the Bureau of Prisons Reform Caucus, which started with a couple of congressmen last fall, has added to its membership and purpose. Now with at least eleven congressmen and women as members, the Caucus issued a series of statements last week on its purpose and plans. Caucus chair Fred Keller (R-Pennsylvania) said, “This pandemic has brought to light many failures in the BOP’s operations, including detrimental inmate transfer policies, staffing shortages, and agency retention issues. The various backgrounds and experiences of the members of this caucus will enable us to better tackle these issues on behalf of the American people.”

Press Release, BOP Expands COVID-19 Testing (Apr 24, 2020)

Associated Press, Inmates refuse inoculations in Connecticut federal prison (March 3, 2021)

The Regulatory Review, The Justice Department Should Preserve Home Confinement (March 1, 2021)

NorthCentralPA.com, Bureau of Prisons Reform Caucus releases series of statements on future plans, accountability (March 5, 2021)

– Thomas L. Root

CARES Act Extended, But Does the BOP ‘Cares’? – Update for March 1, 2021

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

COVID AND CARES ACT HOME CONFINEMENT TO GO ON… FOR NOW

caresbear210104CARES Act Re-upped, As If the BOP Cares: The CARES Act, passed in March 2020, dumped truckloads of money on the coronavirus pandemic. More important that piles of dough (for our purposes, at least), Section 12003 authorized the Federal Bureau of Prisons to place inmates in home confinement as long as the nation is under a COVID emergency and the Attorney General has determined that the “emergency conditions will materially affect the functioning of the Bureau.” President Trump declared a COVID emergency under the National Emergencies Act a few weeks before CARES passed, and Attorney General William Barr made the materiality finding on April 4th.

Under the National Emergencies Act, an emergency only lasts a year unless the President extends it. That means the emergency would have ceased today, and with it, the CARES Act authority would expire.

Last week, President Biden extended the COVID emergency without specifying an end date (which is common). In essence, the COVID emergency will be over with Biden says it is. Biden wrote, “The COVID-19 pandemic continues to cause significant risk to the public health and safety of the Nation. More than 500,000 people in this Nation have perished from the disease, and it is essential to continue to combat and respond to COVID-19 with the full capacity and capability of the Federal Government.”

One could reasonably infer from the President’s statement that the “full capacity and capability” of the government would include continued BOP use of its CARES Act home confinement authority. Yet, as the New York Times observed last week in a scathing article about the BOP’s failure to use home confinement at FCI Danbury, “just 7,850 of the 151,735 people serving federal sentences right now have been granted home confinement — about 5%. State prison populations have fallen by 15% since the pandemic began, according to the Prison Policy Initiative, but not because inmates are being released to home confinement. Instead, many state prisons simply have stopped accepting transfers from county jails.”

The BOP website prefers to trumpet that “the total number of inmates placed in home confinement from March 26, 2020 to the present (including inmates who have completed service of their sentence) is 22,158.” But it turns out that most of those people were placed there in normal course by halfway houses or under elderly offender home detention. The CARES Act home confinees have not constituted much more than a dribble.

home210218The Times reported that “Danbury was singled out for prompt action” by Barr last April, “because it had seen an outbreak, [but] only about 100 inmates have been granted home confinement so far, many as recently as December. At least 550 are still under consideration, most of them convicted of nonviolent offenses like fraud or drug possession.”

It’s not like the problem is limited to Danbury, either. A California federal court found last summer that “[d]espite… the existence of emergency conditions facing the BOP as the result of the pandemic… there is no evidence Respondents are prioritizing their use of statutory authority under the CARES Act to grant home confinement to Lompoc inmates… or giving due consideration to inmates’ age or medical conditions in evaluating eligibility of home confinement.” And a New York federal court found that “rather than attempt to use home confinement, furloughs, and compassionate release as tools to reduce the density among the most vulnerable inmates, the prison chose to not pursue that path at all until well after the initial outbreak had subsided.”

In fact, at Danbury, the BOP settled a class action lawsuit by promising to expedite release of inmates to home confinement. But five months after the BOP and Danbury warden made the deal, a Connecticut federal court found they had “breached the provision of the Settlement Agreement requiring that they ‘endeavor to release individuals approved for home confinement to home confinement within 14 days of the approval decision.”

About 48,000 of the 105,000 inmates the BOP has tested (still, a year later, only 69% of its inmates have had the nose swab) have contracted COVID. This is despite the BOP’s self-lauded “multiphase action plan” to protect inmates and staff from COVID-19. A Pennsylvania federal court dryly observed that “[t]he government’s assurances that the BOP’s ‘extraordinary actions’ can protect inmates ring hollow given that these measures have already failed to prevent transmission of the disease.” The agency’s slow-walk implementation of CARES Act placement cases seems to be cut from the same cloth.

The COVID Curve: The BOP continued last week to report fewer COVID cases. Last Friday’s total of 1,414 was down 29% from the week before. Staff cases remain stubbornly high, 1,622 (down only 3% from the week before). COVID remains present at 128 facilities, up two from last week, but there have been no reported deaths in the last 7 days.

As of Friday, the BOP reported vaccination data for 78 facilities. It reports that about 34% of its 36,000 staff have been vaccinated, and 6.9% of inmates have gotten the shot (up from 5.3% last week). The number of vaccine doses the BOP says it has distributed suddenly froze last week at 58,300, after climbing steadily since January. This suggests the BOP is out of additional doses until it gets its next distribution.

comparison210228

Plotting the rise and fall in inmate COVID numbers against the national ebb and flow shows the graphs are nearly a perfect fit. This is troubling, because late last week, Dr. Rochelle Walensky, director of the U.S. Centers for Disease Control and Prevention warned that with relaxing restrictions and a spread of variant viruses, the declines since January “may be stalling, potentially leveling off at still a very high number. We at CDC consider this a very concerning shift in the trajectory.” The nation had an average of about 66,350 new daily coronavirus cases a day over the last week, higher than the week before which was 64,000 new cases a day.

If national numbers rise again, history suggests the BOP numbers will, too.

Equally troubling is the fact that BOP staff COVID cases have not shown the kinds of decline that inmate and national numbers have. Beyond that, it has taken the BOP over two months to get a mere one-third of its staff vaccinated. The likelihood that staff is the primary vector for spreading COVID inside facilities thus remains high.

Federal Register, Continuation of the National Emergency Concerning the Coronavirus Disease 2019 (COVID-19) Pandemic (86 FR 11599, Feb 26, 2021)

CARES Act (Mar 26, 2020)

New York Times, Vulnerable Inmates Left in Prison as Covid Rages (Feb 27, 2021)

Torres v. Milusnic, 472 F.Supp.3d 713 (C.D. Cal. July 14, 2020)

Fernandez-Rodriguez v. Licon-Vitale, 470 F.Supp.3d 323 (S.D.N.Y. July 2, 2020)

Whitted v. Easter, Case No. 3:20-cv-569 (D.Conn. December 11, 2020), 2020 U.S. Dist. LEXIS 232843

Wilson v. Williams, 961 F.3d 829 (6th Cir. 2020) (Cole, C.J., dissenting).

United States v. Rodriguez, 451 F.Supp.3d 392 (E.D. Pa. 2020).

Los Angeles Times, New fears of next coronavirus wave as case declines slow and variants grow (February 27, 2020)

– Thomas L. Root

CARES Act Home Confinees Must Return to Prison, Trump’s DOJ Says in Parting Shot – Update for January 22, 2021

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

A FINAL STEAMING PILE OF LEGAL EXCREMENT AS THE TRUMP ADMINISTRATION LEAVES THE BUILDING

DOJOLC210122Under the March 2020 CARES Act, Congress gave the Director of the Federal Bureau of Prisons the authority to send inmates to home confinement at any time, despite the 6-month/10% limitation on home confinement set by 18 USC § 3624(c). The conditions set by the legislation were only two: (1) the national emergency declared because of COVID-19 had to be in effect, and (2) the Attorney General had to determine that COVID-19 was materially affecting BOP operations.

Attorney General William Barr concluded in short order that BOP operations were being affected, and that nonviolent inmates with good prison records (and US citizenship and a few other requirements) should be sent to home confinement. The BOP added its own gloss, that the inmate must have completed 50% of his or her sentence (or, for short-timers, 25% of the sentence with 18 months or less to go). By mid-April 2020, the prison-to-parlor pipeline was flowing.

snakeoil170911Since then, the BOP has trumpeted that it has sent over 18,000 inmates to home confinement. It turns out, however, that – like most BOP claims – this one is misleading, if not downright dishonest. The BOP has sent 18,112 people to home confinement in the last 10 months, but 60% of those were eligible for home confinement under 18 U.S.C. § 3624(c)(2) anyway, because they were within their last six months of their sentences (or 10%, if they were sentenced to under five years).

But this leaves about 7,245 people who were sent home who could not have been sent if not for the CARES Act. I know at least two sent home with more than 10 years of sentence left to serve. While that’s a long time to spend in a Barcalounger, nevertheless, there is no doubt that an inmate’s worst day on home confinement is better that his or her best day in prison.

There was a kerfuffle last fall, when a DOJ Attorney said in open court, almost as an aside, that once the pandemic ended, all of the federal inmates sent to home confinement would have to come back to prison.

At the time, FAMM president Kevin Ring said that he had communicated his concern that CARES Act inmates might be recalled to the White House. He said the Trump Administration assured him it would never happen.

Back then I said

but White House assertions (remember President Trump’s promised 3,000 clemencies?) have a way of being wrong. The risk of reincarceration seemed real enough that the House of Representatives included a provision in last May’s HEROES Act that no one “granted placement in community supervision, termination of supervision, placement on administrative supervision, or pre-trial release shall be re-incarcerated, placed on supervision or active supervision, or ordered detained pre-trial only as a result of the expiration of the national emergency relating to a communicable disease.

I generally like being right, but not this time…

Although the end of the pandemic appears to be months away (former basketball point guard and rockstar doctor Anthony Fauci said yesterday that “if the country can get over the hurdle of vaccine hesitancy and reach a 70% to 85% uptake, Americans can expect normalcy in the fall”), the Trump Administration was seemingly unable to resist breaking one final promise.

Last week, the DOJ Office of Legal Counsel issued an opinion entitled “Home Confinement of Federal Prisoners After the COVID-19 Emergency,” concluding that

the CARES Act authorizes the Director of BOP to place prisoners in home confinement only during the statute’s covered emergency period and when the Attorney General finds that the emergency conditions are materially affecting BOP’s functioning. Should that period end, or should the Attorney General revoke the finding, the Bureau would be required to recall the prisoners to correctional facilities unless they are otherwise eligible for home confinement under 18 U.S.C. § 3624(c)(2). We also conclude that the general imprisonment authorities of 18 U.S.C. § 3621(a) and (b) do not supplement the CARES Act authority to authorize home confinement under the Act beyond the limits of section 3624(c)(2).

kick210122Ohio State University law professor Doug Berman said yesterday in his Sentencing Law and Policy blog that “this opinion is certain contestable, the new Biden Justice Department could reconsider it and a court might reject it, and we are surely a long ways from reaching a post-pandemic world.” Kevin Ring denounced the opinion as “one last kick in the groin from the Trump Justice Department,” calling it “is a poorly reasoned piece of cruelty that could make families worry unnecessarily.”

I consider it very unlikely that Biden’s new Attorney General, Merrick Garland, is going to rescind Barr’s finding “that the emergency conditions are materially affecting BOP’s functioning” any time soon. Although the pandemic emergency declaration expires in March, I suspect Joe is more likely to invite Donald Trump over to the White House for a drink than he is to end the emergency. There’s plenty of precedent. At the time the COVID emergency was declared, 60 national emergencies had been declared since the National Emergencies Act was enacted 45 years ago, and 31 of them (including the emergency are still in effect, having been renewed repeatedly. I figure the pandemic emergency to last for another nine months at least.

As I noted above, the House HEROES Act last May sought to plug the CARES Act hole that left home confinees in a non-permanent status. HEROES died a lonely death on January 2nd, but the new 117th Congress can fix the home confinement problem simply enough. Even if Congress does not, the President could grant conditional clemency or district courts could grant compassionate release to keep these folks on home confinement.

Even if it doesn’t, the Biden DOJ can walk back the OLC opinion (and the reasoning is shaky enough that there is plenty of room for reinterpretation) without much difficulty.

timecover2310122There is scant policy justification for returning people on home confinement to prison, unless sheer meanness is now an Administration goal. (Sheer meanness is a criterion more at home in the last Administration, the one that issued the OLC opinion, than with the new people in charge). The BOP has first determined that inmates it proposes sending to home confinement pose little risk to public safety but high risk of COVID, meaning that the CARES Act cohort includes a lot of older and sicker folk. They’re the ones, unsurprisingly who cost the BOP the most to care for. And the lower BOP prisoner population (a drop of 12.5% in a year) has eased the burden the BOP faces from staff shortages. Because the BOP has always had the discretion to return these persons to prison for misconduct, there’s no compelling public safety or cost justification for sending everyone back to prison after the pandemic is over.

In fact, there was probably no compelling need for the outgoing Administration to drop this opinion on the way out the door, unless of course the Trump appointees wanted to create as much legal vandalism for the Biden DOJ to clean up as possible.

Dept. of Justice, Memorandum Opinion for the General Counsel of the Federal Bureau of Prisons (January 15, 2021)

Sentencing Law and Policy, Notable OLC opinion on “Home Confinement of Federal Prisoners After the COVID-19 Emergency” (January 21, 2021)

Forbes, Department Of Justice Lays Plans For Federal Inmates On Home Confinement To Return To Prison (January 21, 2021)

– Thomas L. Root

Conflicting Signals on Recalling CARES Act Home Confinees – Update for October 19, 2020

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

THIS IS KIND OF TROUBLING

comeback201019At a hearing on an inmate’s motion for compassionate release last August, Dept of Justice attorney Michael P. McCarthy made a chilling statement about the Bureau of Prisons’ CARES Act home confinement program: “The defendant is being re-evaluated once he crosses that (50%) threshold and at that point potentially transferred to home confinement. Now, I want to be clear that in the BOP’s program, it’s a transfer until the end of the pandemic and then a return to prison if the pandemic is declared over…”

Writing in Forbes magazine last week, Walter Pavlo said, “While everyone wants an end to the pandemic, those on home confinement may be told that they will be returning to prison … or they could be asked to be immunized in order to return …. or the inmate could refuse immunization …. or the inmate may have only a few months remaining by the end of the pandemic and might file an appeal.”

trumplie201019Pavlo noted that FAMM president Kevin Ring told him a White House source said a return of home confinement people to prison after the pandemic ends – whenever that is – “will NOT be happening.” But White House assertions (remember President Trump’s promised 3,000 clemencies?) have a way of being wrong. The risk of reincarceration seemed real enough that the House of Representatives included a provision in last May’s HEROES Act that no one “granted placement in community supervision, termination of supervision, placement on administrative supervision, or pre-trial release shall be re-incarcerated, placed on supervision or active supervision, or ordered detained pre-trial only as a result of the expiration of the national emergency relating to a communicable disease.”

The HEROES Act stands no chance of passage in the Senate.

Ohio State University law professor Doug Berman, writing in his Sentencing Law and Policy blog, said last week, “Because of the opaque nature of BOP work and data, it is difficult to tell just how many persons have been transferred into home confinement and what percentage of these persons might have long enough still remain on their original sentences to perhaps prompt DOJ to seek their return to prison whenever the pandemic if over.”

Forbes, US Attorney States Federal Inmates On Home Confinement Will Return To Prison Once “Pandemic Is Declared Over” (Oct 15)

Sec 191102(f), HEROES Act, HR 6800

Sentencing Law and Policy, Will some (most? all?) federal prisoners transferred to home confinement be returned to prison after the pandemic ends? (Oct 16)

– Thomas L. Root

Congress Leaves Stimulus – and Federal Prisoners – Up In The Air – Update for August 10, 2020

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

DON’T START TO FEEL TOO STIMULATED JUST YET

Congress left Washington, D.C. last Friday for its August recess without passing a supplemental stimulus bill. The Democrats are pushing the HEROES Act, passed by the House last May, which proposes $3.5 trillion in spending and includes a lot of beneficial provisions for federal prisoners. The Republican-controlled Senate favors the HEALS Act, which includes about $1 trillion in spending but nothing of the sentencing relief measures favored by the House.

senatestimulus200810The HEROES Act provides that the Bureau of Prisons shall send to home confinement anyone who is 50 or over, is within 12 months of release, or has a list of COVID-19 risk conditions. Those conditions, which were just expanded for a second time by the Centers for Disease Control and Prevention on July 30, include pregnancy, heart disease, asthma, diabetes, HIV, cancer, sickle-cell anemia, respiratory problems, obesity, hypertension, or immune system weaknesses. The only exception are people who pose a specific and substantial risk of bodily injury to or to use violent force against another person.

What’s more, courts would be required to reduce sentences for people unless the government can show by clear and convincing evidence that the defendant poses a risk of “serious, imminent injury” to an identifiable person. The Act also incorporates a reduction of the elderly offender home detention program sentence requirement (the subject of a separate bill that has already passed the House, H.R. 4018) to two-thirds of the sentence reduced by good time, instead of the current two-thirds of the whole sentence.

The Health, Economic Assistance, Liability Protection and Schools (HEALS) Act being pushed by the Senate is a mashup of eight other bills, none of which favors prisoners. What’s worse, HEALS’ stimulus package of an additional $1,200 per person is now withheld from people who were prisoners for every day of the 2020 calendar year.

Senate Democrats are trying to get the HEALS Act to require that phone calls from federal prisons remain free during the pandemic, which is a fig leaf (but not much of one) for prisoners.

No one knows whether a final bill, if there even is one, will include any of the House provisions.

housestimulus200810Several groups led by ACLU wrote to Senate and House leaders last week, urging that any stimulus package require the BOP to transfer vulnerable federal inmates to home confinement, clarify the authority of courts to order compassionate release based on COVID-19, and reduce the amount of time courts must wait before considering compassionate release motions during the pandemic. The letter also called on Congress to expand the elderly offender home detention program.

Finally, the House last week added an amendment to the 2021 Commerce, Justice, Science, and Related Agencies Appropriations bill which prohibits the BOP from collecting its 25% fee from halfway house or home confinement inmates. “For returning citizens lucky enough to find jobs, especially in the midst of a national pandemic and economic crisis,” Congresswoman Eleanor Holmes Norton (D-District of Columbia) said, “charging up to 25% of their income in unnecessary fees is not only unfair, it is counterproductive. Returning citizens could far better use this money to save for future rent, child support and fines and fees associated with their conviction, such as restitution.”

H.R. 6800, HEROES Act

S.4318 – American Workers, Families, and Employers Assistance Act

The Hill, Senate Democrats push to include free phone calls for incarcerated people in next relief package (August 6, 2020)

ACLU Leadership Conference, Open Letter to Senate and House Leaders (August 4, 2020)

Press Release, Norton Amendment Prohibiting Bureau of Prisons from Collecting Subsistence Fees from Returning Citizens Passes House (August 3, 2020)

– Thomas L. Root

BOP Gets Grilled On Home Confinement – LISA Newsletter for June 8, 2020

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

LAWMAKERS’ QUESTIONS ABOUT BOP HOME CONFINEMENT ARE GETTING SHARPER

Congressional lawmakers last week started raising questions about the Federal Bureau of Prisons’ release of high-profile inmates, and began calling for widespread testing of federal inmates as the number of coronavirus cases has exploded in the federal prison system.

hotseat200608Sen. Kamala Harris and Rep. Hakeem Jeffries sent a letter Monday to Attorney General William Barr and BOP Director Michael Carvajal over the Bureau’s use of its CARES Act home confinement authority. The CARES Act permits the BOP essentially to designate an inmate’s home as his or her prison, and to send the inmate home for as much of his or her remaining sentence as the BOP wishes. This authority lasts as long as there is a national emergency declared by the President (read “pandemic”).

Citing the release of former Trump campaign chairman Paul Manafort and former Trump lawyer and fixer Michael Cohen to home confinement, the Harris/Jeffries letter said “these examples make clear that there are two systems of justice in our country – one for President Trump and his associates, and another for everyone else. These examples also heighten our concern about the politicization of the Department of Justice.”

The letter demanded to know whether the White House played any role in the release of Manafort or Cohen, and wanted a list of “each official at DOJ and BOP who considered and/or cleared Paul Manafort’s transfer to home confinement.” The lawmakers wrote, “As President Trump’s associates are cleared for transfer, tens of thousands of low-risk, vulnerable individuals are serving their time in highly infected prisons.”

Regular readers of this blog may be forgiven for thinking that the writer is no fan of the ham-handed management at the BOP, but despite this, the Cohen release has gotten a bad rap. The BOP announced that its standards for release of vulnerable inmates included a requirement that they have completed either 50% of their sentences, or 25% of their sentences and have fewer than 18 months remaining.

You may recall that Cohen (like many inmates) was identified as being a home confinement candidate in April. Then he was taken off the list, only to be relisted in late May. When that happened, I did the math. He had done well less than half his sentence, but he had done more than 25%, and he was within 18 months of release as of May 22, 2021. Type his name into the BOP website, and see whether I am wrong.

lovelost200608Of course, last time I checked, Trump is no Cohen fan. Why Harris and Jeffries would think the White House threw him a life ring on early release boggles the mind.  Manafort – who had years to go on his sentence and was well under 50% done – is another matter.

The BOP has disputed that it is giving any preferential treatment to high-profile inmates and has said it has placed 3,544 inmates on home confinement since Barr first issued a memo ordering an increase in the use of home confinement in late March. However, as AP reported last Monday, “the response from the Bureau of Prisons on the coronavirus has raised alarm among advocates and lawmakers about whether the agency is doing enough to ensure the safety of the about 137,000 inmates serving time in federal facilities.”

At a Senate Judiciary Committee hearing last Tuesday, Carvajal was grilled by senators over whether minority inmates and those with fewer connections were receiving similar treatment to Manafort in being sent home.

Carvajal said the BOP has transferred more than 3,500 inmates to home confinement since the CARES Act passed. In response to questioning, he explained the BOP began by identifying 27,000 inmates with at least one COVID-19 risk factor. Only about 4,000 of those qualified for home confinement under Attorney General William Barr’s March and April memos. When the BOP decided to include those with only minor disciplinary problems in the last year, the number rose to 5,300.

allen200608Sen. Cory Booker (D-New Jersey) demanded a breakdown of the demographics of people BOP has approved for transfer to home confinement, saying he is concerned racial bias might be impacting the decisions, including in the application of PATTERN. Carvajal did not provide the demographic data at the hearing, but he assured Booker with the sincerity of a bureaucrat that the BOP administration is taking that concern seriously, and that home confinement approval data tracks with the demographics of the federal prison population.

We’ll see if any data are released to support that platitude.

Letter to William Barr from Kamala Harris and Hakeem Jeffries, June 1, 2020

AP, Lawmakers question federal prisons’ home confinement rules (June 1)

Courthouse News, Senators Grill Feds on Inmate Protections During Pandemic (June 2)

– Thomas L. Root