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Reading the Tea Leaves on Biden’s Criminal Justice Reform – Update for February 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.

CHANGE IS GONNA COME… SLOWLY BUT SURELY

bidensuperman210201Biden ain’t Superman. For that reason, people who have been lighting up my inbox with emails asking whether Biden has done away with mandatory minimums should take a deep breath. A President cannot abolish mandatory minimums. Only Congress can do that.

But there’s a lot of early indication that Biden is going to be active in criminal justice reform. Last week, the acting attorney general pulled the Trump administration’s May 10, 2017, charging and sentencing memo, which required US Attorneys to pursue the harshest charges and stiffest penalties. The new policy, a rollback to the Obama era, “ensures that decisions about charging, plea agreements, and advocacy at sentencing are based on the merits of each case and reflect an individualized assessment of relevant facts.”

Last week, I reported that Trump’s DOJ issued a legal opinion that CARES Act inmates on home confinement would have to return to prison after the pandemic ends. Writing in USA Today, three criminal justice advocates argued that Biden “should immediately rescind the Trump administration’s legal opinion, and should identify more people who could be safely released early back to society, with priority “ given to those who are most vulnerable to COVID-19.

The ACLU announced the launching of an ad campaign calling on Biden to carry out his campaign promise to cut the number of incarcerated persons in the country. The campaign calls for clemency using set criteria, such as focusing on people who, if they were sentenced today, would not receive the same sentence, and releasing the elderly, the medically vulnerable and people locked up for technical probation or supervised release violations.

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Not to be outdone, FAMM and the Prison Fellowship last week announced the “End the Disparity” campaign, to urge Congress to eliminate the 18:1 ratio between crack and powder cocaine-related offenses, making them one-to-one. Senators Cory Booker (D-New Jersey) and Richard Durbin (D-Illinois), both members of the Senate Judiciary Committee, announced legislation that will do so, eliminating the federal crack and powder cocaine sentencing disparity and apply it retroactively to those already convicted or sentenced.

Before the 2010 Fair Sentencing Act, the penalties for one gram of crack was the same as for 100 grams of powder cocaine, resulting in horrific sentences for people with small quantities of crack.  Those people were mostly black, crack being a drug of choice for poorer urban communities (which also were mostly black). In 2010, the Fair Sentencing Act introduced a bit of sanity, but the ratio didn’t drop to 1:1 (a concession to some Jefferson Beauregard Sessions III-type senators to get them to vote for the measure).

So, now, a gram of crack is equal to 18 grams of powder, fairer than before but still a differentiation that is untethered to common sense. The Booker-Durbin bill would drop the ratio to 1:1, if it passes. The fact that both sponsors are on the Judiciary Committee (and Durbin will probably be running the Committee) greatly increases those odds.

HEROES210201Two questions loom large for federal inmates. First, will Biden’s proposed stimulus bill, many elements of which are expected to be drawn from House Democrats’ $3.4 trillion HEROES Act (passed in May but blocked by the GOP-controlled Senate), include breaks for compassionate release, CARES Act releases and elderly offenders? Second, when will Congress see a sweeping criminal justice reform bill?

The details of the stimulus bill have not yet been released. Just like with the HEROES Act, which we didn’t get to read until almost the day it was passed, we will have to wait. As for criminal justice reform, no one knows when legislation will be filed or how long it will take to past.

HuffPost, DOJ Pulls Trump Administration’s Harsh Charging And Sentencing Policy (January 29, 2021)

Courthouse News Service, Biden Moves to End Federal Private Prisons as Part of Racial Equity Plan (January 26, 2021)

Bloomberg, Biden’s Go-Big Stimulus Plans Set Up Fresh Fight in Senate (January 11, 2021)

USA Today, Biden’s executive orders on criminal justice should extend to inmates sent home by COVID (January 28, 2021)

The Hill, ACLU pressing Biden to stick to promise of decarceration with new ad buy (January 28, 2021)

EIN Presswire, FAMM and Prison Fellowship Launch #EndTheDisparity Campaign (January 28, 2021)

Office of Sen. Cory Booker, Booker and Durbin Announce Legislation To Eliminate Federal Crack and Powder Cocaine Sentencing Disparity (January 28, 2021)

Bloomberg Law, Criminal Justice Changes Need Harris to Lead, Advocates Say (January 26, 2021)

– Thomas L. Root

Where Did The HEROES Go? (And Other Stories That Puzzle Inmates) – Update for January 4, 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.

DEAD HEROES

deadheroes210104Last May, the House of Representatives passed the HEROES Act, intended to be the second coronavirus stimulus. The bill, which included in its $3 trillion giveaway a number of criminal justice changes (like letting eligible elderly offenders get home confinement after two-thirds of their good-time adjusted sentences, instead of gross sentences), was promptly denounced by Republicans appalled at its price tag and then ignored by the Senate.

Eight months later, I am still getting questions about it, mostly from people who may have been sleeping in the back of the classroom during high school government class.

A bill passed by the House must then be passed by the Senate and then signed by the President in order to become law. In the case of HEROES, the Senate refused to consider the bill. Rather, the Senate passed the HEALS Act in response to HEROES, a bill that was then immediately not considered by the House.

sleep210104What finally happened last month was that the Senate and House worked out a compromise bill that was neither HEROES nor HEALS. The compromise bill included no sentencing provisions at all, a fact that seems not to detain prisoners at all. One inmate wrote me last weekend, asking me to confirm the rumor that § 205 of the stimulus bill gave elderly offenders the home confinement adjustment they sought. Alas, § 205 is entitled “Pipeline Safety Management Systems,” a provision of interest to elderly offenders only if they’re in the natural gas transmission business.

Another inmate asked me whether HEROES might still pass in January or February. Remember this from high school civics, boys and girls: every Congress lasts two years, and ends on January 3. The 116th Congress ended yesterday, and the 117th Congress starts its two-year run today. When a two-year Congress ends, any bill not passed by both the House and Senate is dead.

That means the sentencing changes contained in HEROES will have to be introduced all over in a new bill.

caresbear210104Someone else wondered how long the BOP’s home confinement authority will last under the CARES Act. There are three answers to that. First, the BOP’s authority lasts until 30 days after the COVID-19 national emergency declared by Trump ends. The National Emergencies Act requires any emergency to end one year after it is declared, unless extended by the President. Since some national emergencies (such as with respect to Iranian assets) have continued for four decades. The current COVID emergency ends in March, but there is little doubt Biden will extend it.

Second, the BOP’s authority only lasts as long as the Attorney General’s determination that the emergency conditions are “materially affect[ing] the functioning of the BOP.” Attorney General Barr made that determination last April, but he or the new AG could withdraw the finding at any time.

Finally, the CARES Act lets the BOP Director put prisoners in home confinement “as the Director determines appropriate.” This provision delegates virtually unreviewable power to the BOP. If the Director decided tomorrow that he had sent all the people he needed to send, he could pull the plug.

A year ago, the BOP population stood at 175,858 inmates. As of last week, the number had fallen 13.5% to 152,184. That’s a 31% drop from six years ago.

No one knows when the BOP will no longer place prisoners in home confinement. But we’re much closer to the end than we are to the beginning.

HEROES Act, H.R. 6800 (May 15, 2020)

HEALS Act, S.4318 et al. (July 27, 2020)

Section 205, Consolidated Appropriations Act, 2021 (December 27, 2020)

Section 12003(b)(2), CARES Act, H.R. 748 (March 28, 2020)

Sentencing Law and Policy, Federal prison population closes out 2020 at new modern low of 152,184 according to BOP (December 31, 2020)

– Thomas L. Root

Nothin’ Happening’ Here… – Update for September 16, 2020

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

… WHEN CONGRESS PAINTS AT ALL

Remember Harry S Truman’s “do-nothing” Congress? If you do, you’re old…like I am. But as Yogi Berra is reputed to have said, “It’s deja vu all over again.”

yogi200917Hopes for any new COVID-19 stimulus package cratered last week, when the Republican-led Senate passed a “skinny” stimulus package that the Democrat-led House refused to consider.

Remember that the House version of the latest stimulus included several provisions easing compassionate release, CARES Act home confinement and elderly offender home detention. But with fewer than 12 work days left for the House and 13 for the Senate before the election, the chances any COVID-19 (or criminal justice) legislation will pass before the election have evaporated.

What happens after the election depends on what happens to control of the White House and Senate, and that won’t be decided until Nov. 3. Meanwhile, deadlock reigns supreme in Washington.

Wall Street Journal, Second Stimulus Check Not Showing Up Soon, if Ever (September 11, 2020)

Politico, 2020 Congressional Calendar (September 12, 2020)

HR 6800, HEROES Act

– Thomas L. Root

It’s Who You Know – And Who Likes You – Update for July 29, 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.

A TALE OF TWO CELEBRITY PRISONERS

I have talked to a number of federal inmates who were approved for home confinement by the Bureau of Prisons, only to be yanked back at the last minute because they had not served quite 50% of their full sentences. At last, there is hope! (Spoiler: I’m just kidding).

ICYMI, in the Coronavirus Aid, Relief, and Economic Security Act – signed into law by President Trump on March 27, 2020 – Congress authorized the BOP to send inmates to home confinement at any time (not just in the last 10%/6 months of their sentences under 18 USC § 3624(c)) during a declared national emergency. That would include the current pandemic.

unabomber200730Congress specified no standards for selecting who should be sent to home confinement. Hypothetically, Ted Kaczynski could be sent home to stay inside for the rest of his natural life. But the Attorney General did establish some standards, such as the inmate has to qualify for low or minimum security (sorry, Ted), have good conduct, be nonviolent, and suffer from one or more CDC-identified risk factors for COVID-19.

Then, unwilling to leave the Attorney General’s standards alone, the BOP decided on its own that if the inmate had not served 50% of his or her total sentence (not just the sentence adjusted for good conduct, but the whole thing), he or she would not qualify to be sent home. One exception was if the inmate served 25% and had fewer than 18 months to go. Another exception was… well, let’s get to that.

Last week we saw another example of the BOP’s practice of treating high-profile prisoners different from everyone else.

In May, Paul Manafort was sent to home confinement after serving 27% of his sentence, with 53 months left to go. The BOP explained that while its standards required that inmates serve 50% of their total sentences, it had the “discretion” to make exceptions, which it did in Paul Manafort’s case (even though there was no COVID-19 at Manafort’s prison).

Put another notch in the BOP’s “discretion” belt. Last week, former Philadelphia-area U.S. Representative Shaka Fattah, sentenced to 10 years starting Jan 25, 2017, was released to home confinement from USP Canaan camp. As of last night, USP Canaan reported a single COVID-19 case, and has had only four others since March. The ex-Congressman has served 42 months, and has 60 months left until his good-time release.

cohen200730Compare this treatment to disfavored high-profile prisoners. Back in New York City, former Trump attorney Michael Cohen (who will not be furloughed to have Thanksgiving Dinner with the President) was yanked out of home confinement and sent back to FCI Otisville on July 9. The BOP said it was because he was trying to negotiate all of his home confinement conditions and was being difficult. Cohen and his lawyer said it was because the BOP was trying to make him agree to not talk to the media or write his tell-all book about President Trump, due out just before the election.

Last week, the ACLU filed a habeas corpus on behalf of Cohen, arguing he should be returned to home confinement because the BOP was violating his 1st Amendment rights. The government filed a detailed opposition that explained no one even knew Cohen was writing a book, and he was asked to sign a list of home confinement conditions that the probation officer, a newbie on the job, had gotten from a friend who had used it for other high-profile inmates sent to home confinement.

Last Thursday, a judge granted habeas corpus, and ordered Cohen returned to home confinement. “In 21 years of being a judge and sentencing people and looking at the terms and conditions of supervised release,” he said, “I have never seen such a clause… Why would the Probation Officer ask for something like this unless there was a purpose to it, unless there was a retaliatory purpose saying, ‘You toe the line about giving up your First Amendment rights or we will send you to jail,’” the judge asked.

The irony here is that both sides were right. There is no doubt that the 1st Amendment limitations the Probation Office sought to ram down Cohen’s throat were gross constitutional violations. Federal inmates in prison are entitled to write books (and can even sell them). Indeed, I have read a few inmate-written books, most of which were self-published and execrable.

book200730Likewise, I have no doubt that the Probation official who prepared the Cohen manuscript had no idea he was writing a book, nor did he imagine that he was creating a constitutional firestorm. Some of the grossest unconstitutional limitations on freedom I have ever seen appeared in terms of supervised release as interpreted by probation officers. Imagine living your life prohibited from using any Internet-connected device without prior approval of a Probation Officer. Or from having any contact with anyone who had ever been convicted of a crime (yeah, “crimes” including speeding).  Or accepting a job offer, buying a house or going to Paducah, Kentucky, on an overnight business trip.

Philadelphia Inquirer, Former Philly U.S. Rep. Chaka Fattah came home early from prison. Federal officials won’t say why. (July 26)

The New York Times, Judge Orders Cohen Released, Citing ‘Retaliation’ Over Tell-All Book (July 23)

– Thomas L. Root

Are Some CARES Act Inmates More Equal That Others? – Update for May 28, 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.

MEDIA, ADVOCACY GROUPS CALL OUT BOP ‘CRUEL INDIFFERENCE”

Word that the BOP was sending Michael Cohen, President Trump’s former lawyer, from FCI Otisville to home confinement under the CARES Act has sparked widespread criticism of the BOP’s management of the home detention program.

ignore170816Cohen, serving a 36-month sentence, has not yet served half of his term. However, while the BOP has been closed-mouth about the release, it appears that as of May 22, he had served 25% and was within 18 months of his good-time release. Cohen was originally slated to go home last month, but he was pulled from the list because he had not met the BOP’s newly-ginned up minimum sentence requirements.

The Washington Post complained last Friday that the “disorganization” at the Bureau of Prisons has not been limited to Cohen. “Inmates in several institutions have complained that the agency has issued shifting, sometimes contradictory directives about who should be released, and applied the rules inconsistently… The bureau’s decisions on who gets out, though, have sparked considerable controversy. That was especially true for [one-time Trump campaign chairman Paul] Manafort, who had been imprisoned since 2018 and was serving a term of more than seven years.”

home190109Last week in Newsweek, a public defender and prison advocate wrote that “[w]e aren’t angry that Manafort will serve the remainder of his sentence from the comfort of his three-bedroom home in Northern Virginia with his family. Far from it: We are outraged that the exact same reasonable argument and urgent call for release made by the millions of other people caged in jails and prisons across the country—with the support of their families, public defenders, advocates, organizers and medical professionals—have been met with cruel indifference or derision by those with the power to do something.”

In a Massachusetts case heard last week, according to Law360, FMC Devens’ warden was testifying that an inmate seeking compassionate release had served less than half his sentence, and thus was not considered for CARES Act release.

“As the warden was testifying,” the judge said later, “the Bureau of Prisons evidently ordered an exception to this requirement for President Trump’s former campaign manager Paul Manafort even though he had only served 23 months of a 77-month sentence. Every person and case is unique, and Mr. Manafort may have health problems that place him at a particularly high risk. However, making an exception to the policy for him and refusing to consider… and other elderly inmates on the merits will raise reasonable questions about whether justice is indeed blind.”

Since the CARES Act passed at the end of March, the number of people in home confinement increased by only 2,578, about 1.5 percent of the nearly 171,000 people in federal prisons and halfway houses when the Act passed.

The latest rumored high-profile release was the past weekend’s rumbling that former Detroit Mayor Kwame Kilpatrick, with 21 years left on a 27-year sentence, would be sent by the BOP to home detention for his remaining term. The widely-reported but unconfirmed release would send Kilpatrick to home confinement after about 25% of his sentence served. However, the BOP dashed the hopes of Kwame’s supporters Tuesday, when it announced that he would not be getting CARES Act home confinement:

On Tuesday, May 26, 2020, the federal Bureau of Prisons reviewed and denied inmate Kwame Kilpatrick for home confinement. Mr. Kilpatrick remains incarcerated at the federal correctional institution in Oakdale, Louisiana.

Kwame’s supporter might reasonably ask why Manafort could go to home confinement after serving 25% of his sentence, but Kilpatrick could not, especially where Manafort left a prison where there had been no COVID-19 while Kilpatrick languished in a veritable coronavirus petri dish.

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Many prisoners are excluded from the home detention program by the BOP’s restrictive view of what constitutes a prior crime of violence and PATTERN risk assessment scores that aren’t “minimum.” Some of those prisoners are turning to compassionate release motions under 18 USC § 3582(c)(1)(A). Since Trump signed the First Step Act in December 2018, only 144 people had been granted such release through April 1st. Since then, 268 prisoners nationwide received compassionate release.

The Dept of Justice has been reflexively fighting compassionate release motions. In a case decided last week, government lawyers called compassionate release a “Get Out of Jail Free Card” and referred to the pandemic as “a red herring.” DOJ contends that compassionate release is just judges micromanaging prisons, that the BOP knows best whom to release, and that the BOP’s COVID-19 Action Plan has controlled the pandemic and makes prison a safer place to be than at home.

The Marshall Project, Michael Cohen and Paul Manafort Got to Leave Federal Prison Due to COVID-19. They’re The Exception (May 21)

The Washington Post, Michael Cohen released from federal prison over coronavirus concerns (May 21)

Newsweek, We’re Not Angry Paul Manafort Was Released. We’re Angry Millions of Others Weren’t (May 18)

Law360.com, Manafort’s Release Helps Spring Ex-NFL Lineman From Prison (May 15)

Detroit Free Press, COVID-19 outbreak that killed his fellow inmates will help set Kwame Kilpatrick free (May 22)

Detroit Free Press, Kwame Kilpatrick denied early release from federal prison (May 27)

– Thomas L. Root

No Pants, Sneaky Releases and Weird Numbers – Update for May 19, 2020

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JUDGE DEPANTS BOP CARES ACT EFFORTS, WHILE TRUMP BUDDY JUMPS HOME CONFINEMENT LINE

Last week’s top three developments in the BOP’s response to the coronavirus pandemic were a federal court’s grant of a preliminary injunction against FCI Danbury, the CARES Act release to home confinement of President Donald Trump’s former campaign chairman Paul Manafort, and the BOP’s unusual COVID-19 inmate numbers.

depants200519In Connecticut, a federal judge granted a preliminary injunction ordering the FCI Danbury warden to promptly identify inmates with COVID-19 risk conditions and to begin aggressively evaluating requests by prisoners for transfer to home confinement or compassionate release. The judge ruled that the FCI Danbury administration had failed to carry out Attorney General William Barr’s April 3 memo ordering the BOP to “maximize” emergency authority granted by the March 28 CARES Act to release inmates to home confinement.

The Danbury inmates — men and woman confined at three facilities within the complex — complained in the lawsuit that the institution was intentionally dragging its feet on compliance with Barr’s memo. The inmates argued — and the court agreed — that prisoner releases or transfers are necessary to decrease congestion and permit adequate social distancing within the institution.

The order gives the Danbury warden less than two weeks to provide him with a list of inmates eligible for transfer to home confinement. In the case of the ineligible inmates, the judge ordered the prison to provide explanations. While the judge did not grant a preliminary injunction on inmate requests for mass transfer of inmates to other institutions or home confinement, and for appointment of a special master to enforce virus mitigation measures in the prison, but he ordered an expedited hearing schedule to take up the questions.

The 74-page order blasts Danbury’s chary use of CARES Act authority and compassionate release. In the suit, the BOP admitted that since March 19, FCI Danbury staff received 241 requests for compassionate release. Of these, 136 had been denied, 18 were returned to the inmate for further information, and 87 were still awaiting review. The court observed that

the figures make clear that the FCI Danbury staff has, to date, not granted a single request for compassionate release—a batting average that is dramatically less favorable to inmates than the frequency with which courts in this District are granting Section 3582 motions… This suggests that the Warden is setting an impossible high bar for these requests. Alternatively, it suggest that the Warden has not set a new standard for compassionate release in light of the pandemic, but is applying an obsolete one that takes no account of the risk of illness or death to medically vulnerable inmates from COVID-19.

Danbury’s use of CARES Act authority fared no better. “In spite of the explicit statutory authorization in the CARES Act to make widespread use of home confinement in response to the threat posed by COVID-19, and the exhortations of the head of the government department in which the Bureau of Prison sits,” the Court wrote, “the implementation of this directive at FCI Danbury has been slow and inflexible.” Noting the Warden’s admission that only 159 inmates have been reviewed and a mere 21 inmates actually been placed on CARES Act home confinement, the Court said, “the criteria apparently being used by the Respondents to evaluate inmates for home confinement evidence a disregard for the seriousness of the health risk faced by vulnerable inmates…. In fact, the inmate bulletins make clear that those who have not served a specified percentage of their sentences are categorically disqualified: any inmate who has not served at least 50% of his or her sentence is deemed ineligible for home confinement, irrespective of vulnerability to COVID-19.”

Someone in the BOP must have read the Danbury order, because the very next morning, an inmate was sent to CARES Act home confinement who had only completed 25% of his sentence, and was not housed in a prison that had any COVID-19. Unfortunately for the BOP, the prisoner was named Paul Manafort.

linejump200519

Manafort, Trump’s former campaign chairman, pled guilty in one federal case and was convicted after a trial in a second, and is about as high-profile as a federal prisoner can be. His release to home confinement in the predawn hours of last Wednesday spurred immediate denunciations of the unequal treatment of prisoners in a criminal justice system in which the wealthy and well-connected jump the line while millions of others are forced to face the spreading coronavirus pandemic with little or no hope of release.

The BOP explained that the agency “ha[s] wide discretion over who is granted home confinement,” the Des Moines Register reported. While there have been no reported cases of coronavirus at FCI Loretto, Manafort’s lawyers had previously argued that the “growing number of cases in Pennsylvania” meant it was “only a matter of time before the infection spreads to staff and inmates.” The attorneys said last month that high-risk inmates, such as their client, had to be removed from the prison before the virus arrived.

The Manafort home confinement is already being thrown in the face of U.S. Attorneys arguing against compassionate release on the grounds that the defendant has not served enough time, or that there is no coronavirus at the facility.

The BOP’s COVID-19 numbers took a puzzling dip last week. Following a tour of FCI Terminal Island Tuesday, Congresswoman Nanette Barragán, D-California, said the conditions inside the prison fall short of the federal government’s responsibility to protect inmates during the COVID-19 pandemic.

Apparently Barragán’s complaints did not fall upon deaf ears. As of Monday night, FCI Terminal Island was reporting 693 inmates sick with coronavirus. As soon as Barragán completed her visit, Terminal Island’s sick inmate count fell to 150 inmates, a 79% decrease.

Huffpost reported that “a proactive testing and segregation strategy that Bureau of Prisons officials and the Los Angeles Department of Public Health implemented late last month has seemingly produced a rapid reduction in the cases. Faced with the health crisis, officials took dramatic steps ― a lockdown of the facility, mandated testing of all prisoners, and separating inmates by their COVID-19 status.”

The BOP told Huffpost that an “aggressive testing and quarantine mitigation strategy” has led to the recovery of more than 567 inmates have recovered, while 130 remain infected. Eight Terminal Island inmates died in the pandemic.

crazynumbers200519A week ago, the BOP reported 3,385 inmate COVID-19 cases, with 48 dead. As of last night, there are 2,402 inmate cases. Eight more federal inmates died in the last week, bringing the death toll to 57. More ominously, the number of institutions with reported COVID-19 has climbed from 51 to 54 as of Sunday (but fell to 49 last night), and staff coronavirus cases climbed from 250 a week ago to 284 as of Sunday, before taking a dive to 196 last night.

The numbers seem to move of their own volition. As Reuters pointed out yesterday, “federal prisons, which typically limit testing to inmates with obvious symptoms, reported confirmed infections in fewer than 4,200 of their total inmate population of about 150,000, with 52 deaths.” As this blog has noted before, if you don’t test, you can’t count.

Rather crazy, but hardly reliable.

Long Beach, California, Post, Terminal Island is failing to protect inmates from COVID-19, congresswoman says after tour (May 13)

Hartford Courant, U.S. Judge backs prison inmates in Danbury on COVID-19 suit, orders warden to move fast on requests for release (May 12)

Martinez-Brooks v. Easter, 2020 U.S. Dist. LEXIS 83300 (D.Conn. May 12, 2020)

Common Dreams, ‘Manafort Released. But [Insert Name] Still Locked Up’: Special Treatment for Trump Crony Denounced (May 13)

Des Moines Register, Ex-Trump campaign chairman Paul Manafort released from prison amid coronavirus pandemic (May 13)

Daily Beast, Paul Manafort’s Prison Had No Coronavirus Cases. He Was Released Anyway. (May 13)

Huffpost, Lockdown At Terminal Island Federal Prison Curbs Deadly Coronavirus Outbreak (May 15)

– Thomas L. Root

Hoping the Caboose Stays Attached to the Train – Update for May 18, 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.

HOUSE OF REPRESENTATIVES TUCKS INMATE COVID-19 RELIEF INTO HEROES ACT

caboose200518The House passed the HEROES Act of 2020, a $3 trillion coronavirus-relief package, last Friday by a narrow 208-199 vote. The measure marks the Democrats’ starting point for talks with Republicans and the White House on the next round of stimulus. Fourteen House Democrats, many of whom were elected in 2018 from swing districts, voted against it. One Republican, Peter King (New York), voted for the bill.

Republicans are saying the bill, H.R. 6800, has no prospect of passing the GOP-led Senate. “It’s a parade of absurdities that can hardly be taken seriously,” Senate Majority Leader Mitch McConnell (R-Kentucky) was quoted in the Wall Street Journal as having said Thursday night. McConnell said he had spoken recently with President Trump, and that they agree another bill is probably necessary but that “it’s not going to be a $3 trillion left-wing wish list like the speaker is apparently going to try to jam down the throats of her majority.”

Why do I care (except that my bride and I could use another $2,400 check)? I care because tucked into the bill starting at page 1683 (§ 191101), is the so-called Pandemic Justice Response Act. That section makes clear that the House of Representatives is not terribly impressed with the Bureau of Prisons’ efforts so far to reduce its inmate population because of COVID-19.

The House is not alone. Last week, the U.S. District Court for the District of Connecticut minced no words about the BOP’s exercise (nonfeasance would be a better term) of its CARES Act authority to send FCI Danbury inmates to home confinement:

In spite of the explicit statutory authorization in the CARES Act to make widespread use of home confinement in response to the threat posed by COVID-19, and the exhortations of the head of the government department in which the Bureau of Prison sits, the implementation of this directive at FCI Danbury has been slow and inflexible. The Warden indicates that only 159 inmates have been reviewed since March 26, and a mere 21 inmates have actually been placed on home confinement, out of a population of roughly 1,000. Moreover, the criteria apparently being used by the Respondents to evaluate inmates for home confinement evidence a disregard for the seriousness of the health risk faced by vulnerable inmates. Indeed, the most recent inmate bulletin regarding home confinement criteria does not even expressly mention health risks or how they will be evaluated… In fact, the inmate bulletins make clear that those who have not served a specified percentage of their sentences are categorically disqualified: any inmate who has not served at least 50% of his or her sentence is deemed ineligible for home confinement, irrespective of vulnerability to COVID-19. Other criteria in the inmate bulletins are similarly unrelated to medical vulnerability and, at best, only tangentially related to public safety. For example, any inmate with an incident report in the past 12 months—no matter the seriousness—is deemed ineligible for home confinement, regardless of any health condition he or she might have. At oral argument, the Government suggested that such an inmate could seek compassionate release as an alternative. But that is a dead end at FCI Danbury: Of the 241 requests for compassionate release filed since the COVID-19 crisis began, the Warden has signed off on exactly 0.

drno200518The HEROES Act seeks to solve the BOP’s unfortunate predisposition to read any grant of statutory discretion to be the right to say “no, no and hell, no!” by providing that the Bureau shall (not may but 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 include pregnancy, heart disease, asthma, diabetes, HIV, cancer, sickle-cell anemia, respiratory problems or immune system weaknesses. The only exception are people determined by clear and convincing evidence to 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. This would make an elderly offender doing a 120-month sentence eligible for home confinement at 68 months rather than 80 months.

noplacelikehome200518Under CARES Act home confinement, all the BOP is doing is designating an inmate’s home as the place of imprisonment. Nothing prevents the BOP from redesignating an inmate on home confinement back to prison at the agency’s whim. The HEROES Act would prohibit reincarceration of people sent to home confinement for no better reason than the pandemic might be over.

The HEROES Act is an 1800-page train, leaving the Pandemic Justice Response Act to pretty much be the caboose. While everyone considers it likely some of the HEROES Act will be approved by the Senate, no one can be sure whether the caboose will still be attached to the train when the Act finally pulls into the station.

Wall Street Journal, House Narrowly Passes $3 Trillion Aid Package (May 16)

H.R. 6800, HEROES Act of 2020

– Thomas L. Root

It’s a Miracle! – Update for May 13, 2020

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

MIRACULOUS DOINGS AT THE BOP

Yesterday brought two miracles at the Bureau of Prisons, one physical and one legal.

Following a tour of FCI Terminal Island yesterday, Congresswoman Nanette Barragán, D-California, said the conditions inside the prison fall short of the federal government’s responsibility to protect inmates during the COVID-19 pandemic.

“I’m very concerned about what I saw in there,” Barragán said during a press conference. “The bottom line here is the federal government has a duty and an obligation to protect inmates and their health.”

Apparently Barragán’s complaints did not fall upon deaf ears. As of Monday night, FCI Terminal Island was reporting 693 inmates sick with coronavirus. As soon as Barragán completed her visit, Terminal Island’s sick inmate count fell to 150 inmates, an amazing 79%!

It’s a miracle! In a mere 24 hours, 543 inmates suddenly recovered from COVID-19! The Lord Himself could hardly have done better.

And some people wonder why no one believes the BOP’s numbers…

lackfaith200513Meanwhile, on the other coast, a legal miracle: we learn that as least as far as the BOP is concerned, George Orwell was right – some animals really are more equal than others.

Three weeks after the BOP told hundreds of inmates who had been tapped for home confinement under the CARES Act that they would not be going home after all, because of a heretofore unannounced BOP policy that required an inmate to serve 50% of the full sentence prior to CARES Act approval, inmate Paul Manafort was sent to home confinement from FCI Loretto after serving less than a third of his sentence.

FCI Loretto, of course, is a hotbed of infection, with a total of zero COVID-19 cases so far. 

According to news reports, “prison officials have wide latitude when considering these releases on a case-by-case basis.” “Discretion,” of course, means that some guys with 54 months yet to serve on a 71-month sentence can be sent home from a place that doesn’t have any coronavirus.

Is this a great country or what? If you wonder, check with all of those vulnerable inmates who were denied home confinement from places like Butner, Elkton, Terminal Island, Fort Worth and Lompoc because they had only served 45% of their sentences…

Long Beach, California, Post, Terminal Island is failing to protect inmates from COVID-19, congresswoman says after tour (May 13, 2020)

BOP, Coronavirus Map (May 13, 2020)
Yahoo.com, Former Trump campaign chairman Paul Manafort released to home confinement amid coronavirus concerns (May 13)

– Thomas L. Root

Beating Up The BOP Over CARES Act Home Confinement – Update for May 6, 2020

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

BOP TAKING IT ON THE CHIN OVER COVID-19 HOME CONFINEMENT MOVING TARGET

Hand in hand with criticism of the BOP’s COVID-19 management, courts and the media are blasting the Bureau’s bungling of its CARES Act home confinement authority.

punchinface180423For those of you who just came in, the CARES Act authorized the BOP to send inmates to home confinement during the COVID-19 emergency, in order to get inmates with medical vulnerabilities out of prisons ahead of the novel coronavirus pandemic.  Attorney General William Barr directed the BOP to act expeditiously, and laid out a series of standards by which the BOP should measure whether an inmate should be sent home.

The BOP applied the standards, and told a lot of people they would be going home. Then, in an abrupt about-face, the BOP decided that the AG’s standards weren’t enough. The Bureau retroactively applied a requirement that the inmate have completed 50% of his or her sentence in order to qualify for CARES Act home confinement, and told many of the people in pre-release quarantine that they would not be going to home confinement after all.

Then the DOJ said that the 50% standard wasn’t a standard at all, and then the BOP said, well, maybe not a standard, just a priority. And the shell game continued…

Last week, the BOP and DOJ were sharing the flak for the snafu.

Forbes noted, “Attorney General Barr gave some direction to the BOP and it dropped the ball. Individuals who were told they were being released from prison… have now been told they are staying put. This could have been avoided. The strain on the court system has been burdened with Compassionate Release motions that have wasted the time of judges, defense attorneys and prosecutors when all along the BOP could have acted to release vulnerable inmates. These resources, this personal pain, could have been avoided if the BOP just used its own policies.”

AP wrote, “The Bureau of Prisons has given contradictory and confusing guidance how it is deciding who is released to home confinement in an effort to combat the virus, changing requirements, setting up inmates for release and backing off and refusing to explain how it decides who gets out and when.”

shellgame200506NBC analyst and former US Attorney Glenn Kirschner last week blamed Barr. “Shifting and changing inmate release policies have caused widespread confusion. The lack of a clear, common-sense Justice Department/Bureau of Prisons policy prompted one federal judge to sternly rebuke the government, saying the procedures were ‘illogical’ and ‘kafkaesque…’ Simply put, the Bureau of Prisons flip-flops are yet another example of Barr’s lack of leadership and a sign of a Justice Department in free fall.”

In a lawsuit by inmates at the Federal Medical Center in Devens, Massachusetts, against BOP management of the COVID-19 pandemic there, the BOP explained to the court that some of the petitioning inmates were ineligible for CARES Act release under the BOP’s 50%-of-sentence standard. The petitioners shot back, “Although Respondents use words like “required criteria” and “ineligible” to describe their decision to bar so many people from being transferred to home confinement, they cannot defeat a claim of deliberate indifference by arguing they have tied their own hands with bureaucratic red tape. That is not a defense; it’s a confession.”

Forbes, The Federal Bureau Of Prisons’ “List” Has Caused Confusion in Courts and Prisons (April 24, 2020)

AP, Federal inmates battle mixed messages on home confinement (April 28, 2020)

NBC, Is Michael Cohen getting out of prison? Why Barr’s coronavirus release rules deserve scrutiny (April 28, 2020)

Petitioner’s Reply (Dkt. 38), Grinis v. Spaulding, Case No. 20cv10738 (filed April 27, 2020)

– Thomas L. Root

Last Week Was Lousy for the BOP… and Inmates – Update for May 4, 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.

SKYROCKETS IN FLIGHT

The Bureau of Prison’s official count of inmates with COVID-19, already widely disbelieved as being a gross undercount, skyrocketed last week from 799 on Sunday night to 1,926 inmates at 51 facilities last night.

rocket190620About 70% of all infections are at the federal prisons at Terminal Island, California, the Federal Medical Center at Ft. Worth, Texas, and the Butner prison complex in North Carolina. Terminal Island has the highest number of COVID-19 cases at 620 inmates.

Eleven inmates died last week, bringing the total COVID-19 deaths in the BOP to 38. The one that sparked the most outrage was that of Andrea Circle Bear, a 30-year old pregnant inmate with a 26-month sentence. Assigned to the women’s Federal Medical Center Carswell, also in Fort Worth, she was put on a ventilator March 31 and delivered her child by caesarean section the next day. Ms. Circle Bear never came off the ventilator, and died of COVID-19 on Apr 28.

“It’s an outrage that Andrea Circle Bear, a near full-term, pregnant woman with underlying medical conditions, lost her life while in federal custody,” Congressman Jerrold Nadler (D-New York), chairman of the House Judiciary Committee, told Reuters. “We have a moral and constitutional duty to prevent additional deaths among those who are detained or imprisoned.”

Sen. Richard Durbin (D-Illinois), who sits on the Senate Judiciary Committee, said, “Simply put, this tragic death was preventable.”

The BOP warned a week ago that as it began testing, the numbers would go up. But the BOP may not have been prepared for what the tests show: figures provided to Associates Press last week showed that out of 2,700 tests systemwide, nearly 2,000 inmates –¬ over 70% – have come back positive, strongly suggesting there are far more COVID-19 cases in the system than anyone knows.

corona200313Felicity Rose, director of research and policy for criminal justice reform at the progressive advocacy group FWD.US, said “the lack of testing is leading to a false sense of security,” NPR reports.

“We know that it’s spreading among staff, and that staff are bringing it into and out of the facilities,” Rose said. “We know there are people who are asymptomatic and are able to pass it along, but we just don’t know how many.”

AP reported that BOP’s response “to the growing coronavirus crisis in prisons has raised alarm among advocates and lawmakers about whether the agency is doing enough to ensure the safety” of inmates. At the same time, the AP said, BOP “communication policies are leaving families in the dark about their loved ones’ potentially life-threatening condition.”

The BOP reports on its website that MDC Brooklyn and MCC New York have no reported inmate COVID-19 cases as of May 3. In a filing that same day, however, the wardens of those facilities told the US District Court that they had 11 confirmed inmate COVID-19 cases.

In the class action suit pending against the BOP’s management of COVID-19 at FMC Devens, an expert on infectious diseases in prisons told the court, “As of April 26, 2020 FMC-Devens was reporting a single confirmed prisoner case of COVID-19. But because the facility is testing only symptomatic prisoners, this data point is not meaningful. It certainly does not mean that the facility is safe. Everything we know about the presentation and transmission of this disease points to the fact that when you have one confirmed case under a symptomatic protocol, it is fair to assume that there are many more cases at that facility..”

Following the Dept of Justice Inspector General’s decision to investigate whether the BOP is complying with available guidance and best practices on COVID-19 outbreaks, Senators Durbin and Chuck Grassley (R-Iowa) asked the IG to also look at whether the BOP is properly using its legislative authority to transfer at-risk inmates to home confinement:

We are concerned that BOP is not fully and expeditiously implementing relevant statutory authority and directives from the Attorney General. We are also concerned about how closely BOP is following CDC guidance or taking other preventive measures to adequately protect BOP staff and inmates from the spread of COVID-19… We also worry that BOP is significantly underestimating the rate of COVID-19 infection in BOP facilities because BOP has not yet conducted the number of tests on staff or inmates appropriate for facilities where a highly contagious virus can be easily spread.

Although an ACLU class action case against FCI Oakdale (Louisiana) was dismissed on jurisdictional grounds ten days ago, at least five other cases are active. In Massachusetts, the judge in the FMC Devens case heard argument on a preliminary injunction last week, and is expected to rule this week.

A motion for a preliminary injunction has been filed in Connecticut federal court by a class of inmates at FCI Danbury, seeking to have female inmates and vulnerable male inmates placed in home confinement immediately. The plaintiffs argue that at FCI Danbury, site of a what they call a “dangerous and uncontrolled” COVID-19 outbreak, the BOP has failed to effectively protect inmates.

shredder200504In a suit against MDC Brooklyn, the report of the plaintiffs’ expert – Dr. Homer Venters – criticized the sick call request system, hygiene, and using temperature measurement to diagnose COVID-19. Of more concern, the report accused MDC Brooklyn of destroying records of inmate sick call. Dr. Venters, an epidemiologist specializing in disease in prisons, told the court he was “alarmed by the facility’s failure to implement simple procedures, in-line with the Center for Disease Control guidelines, that could identify patients ill with COVID-19, prevent the spread of COVID-19 throughout the facility, and ensure that high-risk patients receive adequate care.”

In a similar suit against the MCC New York, the warden complained to the court last Friday that the BOP should not permit a similar inspection of its facility by a plaintiff’s expert. “Allowing an inspector to enter MCC would not only raise the usual security concerns,” the warden said in a filing, “but would present particular concerns given the COVID-19 pandemic. One key element of BOP’s protocol in response to the pandemic is to limit to an absolute minimum the number of people entering the facility, as discussed above. Permitting an outside inspector to enter MCC would run counter to those efforts.”

In Ohio, where a federal judge ruled that the BOP’s operation of FCI Elkton amounted to an 8th Amendment violation, BOP lawyers argued last week that the measures Elkton took to curb the virus’s spread had been effective. In an emergency motion to the 6th Circuit for a stay of the district court’s order, the BOP contended that its COVID-19 containment “efforts have been working as the number of new cases has been reduced.” The 6th Circuit denied the BOP’s request for stay.

Pinocchio160812Writing in Forbes, Walter Pavlo said, “I’m not sure where the attorneys got their stats but according to the BOP’s own website that tracks (under-reports) COVID-19 spread showed a marked increase in cases. Between the judge’s order on April 22 and the government response with this claim on April 28, positive COVID-19 cases went from 566 to 1,313… so I’m calling that one a Pinocchio. In fact, since the BOP first started tracking the outbreak, the numbers have increased every day and they are going up at higher rates since more testing began.”

In the Elkton lawsuit, the BOP was forced by the judge to publish a list of inmates who were medically vulnerable to COVID-19. The list of 837 inmates, released on Thursday, amounted to half of the institution.

Meanwhile, The Dallas Morning News reported that FMC Ft. Worth, a “federal prison that houses sick and elderly inmates, has emerged as a COVID-19 hot spot, setting staff and inmates on edge and fueling controversy over how the prison system is handling the pandemic.” As of last night, FMC Ft. Worth had 445 inmate cases, with four dead.

But the worst outbreak is in California, at FCI Terminal Island, just south of Los Angeles. The prison’s 620 coronavirus cases followed mass testing of more than 1,000 inmates by Los Angeles County Public Health officials, according to the BOP. The facility now accounts for more than a third of documented federal prison inmates with the coronavirus.

USA Today, More than 1,500 federal prisoners now have COVID-19 as officials expand testing (April 29, 2020)

The New York Times, U.S. Federal Inmate Dies of COVID-19 Weeks After Giving Birth While on a Ventilator (April 28, 2020)

The Marshall Project, A State-by-State Look at Coronavirus in Prisons (May 1, 2020)

AP, Over 70% of tested inmates in federal prisons have COVID-19 (April 29, 2020)

NPR, ‘A Ticking Time Bomb’: Advocates Warn COVID-19 Is Spreading Rapidly Behind Bars (April 28, 2020)

Letter to Judge Mauskopf in response to Administrative Order 2020-14 (April 30, 2020)

Forbes, After Seeing Federal Bureau Of Prisons Up Close, Federal Judges May See Sentencing Differently In Future (May 3, 2020)

Sens. Richard Durbin and Charles Grassley, Letter to DOJ Inspector General (April 21, 2020)

Declaration of Prof. Lauren Brinkley-Rubinstein, Dkt.38-1, Grinis v. Spaulding, Case No. 20cv10738 (D.Mass., filed April 27, 2020)

Martinez-Brooks v. Easter, Case No. 3:20cv569 (D.Conn.)

Chunn v. Edge, Case No. 1:20cv1590 (EDNY)

Fernandez-Rodriguez v. Licon-Vitale, Case No. 1:20-cv-03315 (S.D.N.Y.)

Wilson v. Williams, Case No. 4:20cv794 (N.D. Ohio)

Dallas Morning News, 3 deaths and rampant infections at a Fort Worth lockup are fueling criticism of how federal prisons are handling the pandemic (April 29, 2020)

Los Angeles Times, Coronavirus outbreak at Terminal Island prison worsens: 5 dead, 600 infected (May 1, 2020)

– Thomas L. Root