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Carvajel’s Subcommittee Swan Song – Update for February 7, 2022

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

BOP DIRECTOR’S FINAL HOUSE OVERSIGHT HEARING LARGELY A MARSHMALLOW FIGHT

Marshmallow220207Bureau of Prisons Director Michael Carvajal dumped numbers on a largely uncritical House Subcommittee on Crime, Terrorism, and Homeland Security last Thursday, in what is likely the retiring Director’s final oversight hearing.

Committee chair Rep. Sheila Jackson-Lee (D-Texas) suggested fireworks to come when she opened the session wondering how the BOP could justify turning down inmates for compassionate release who later died of COVID. But the fireworks were largely a dud, as hard questions about criminal misconduct by BOP staff, lax security, and decrepit facilities – the reasons Associated Press gave for Carvajal’s resignation in the wake of Congressional pressure for his replacement – went unasked.

The Director’s play with numbers went unchallenged as well. His written statement reported that the Bureau has transferred more than 37,000 inmates to community custody, noting parenthetically that only about a quarter of those were transferred pursuant to the authority granted by the CARES Act. In his oral testimony, the Director truncated that to the BOP having “released over or transferred over 37,000 under the CARES Act to home confinement and community placement.”

The BOP has been bandying the 37,000 number about for a long time, used to lull legislators into thinking the agency had vigorously used its CARES Act authority. What it comes down to is that the BOP kept releasing people to halfway house/home confinement as usual but could only find under 7% of BOP inmates in custody who “qualified” for CARES Act placement over a 22-month period. The “qualifications” were those laid down by the Attorney General, with additional gloss (such as the inmate must have served 50% of his or her sentence). That means that 28,000 of that 37,000 number would have gone to halfway house or home confinement under normal end-of-sentence placement, even without the CARES Act.

Maybe the number misdirection doesn’t seem like such a big deal, but it’s emblematic of BOP culture. If the BOP’s professional judgment is that the CARES Act should be no more than the 7% solution, why not tell Congress “we released 9,000 people under the CARES Act, and if you wanted us to release more, you should have written the law differently.” Instead, the BOP leads with the 37,000 number, hoping that Congress doesn’t listen that carefully, and will think the BOP has done much more than it has. It is a tacit admission by the BOP that it knows it has been unreasonably chary in applying the CARES Act, and it hopes Congress doesn’t tumble to it.

pigfly220207Perhaps the next BOP director will be candid enough to own what his agency has done or not done with its authority. (See flying pig).

Carvajal also assured the Subcommittee that the BOP “continue[s] to screen inmates for appropriate placement on CARES Act” and that while the 50%-of-sentence standard is one of the “four hard criteria,” the BOP has “discretion – there usually is a higher-level review if the staff of the institution feels that it is appropriate outside of the CARES Act, we have procedures in place to review cases such as that…”  Call this the Manafort exception. Unfortunately, but for Paul Manafort’s CARES Act release in May 2020 (and former congressman Chaka Fattah in July 2020), the BOP has been steadfast in refusing to waive the 50% rule. It should be called the “who-you-know” exception.

who201229Responding to questions from Rep. Karen Bass (D-California), Carvajal said that 80% of the BOP staff was vaccinated, but only 95,000 out of 135,100 in-custody inmates had gotten the jab. His numbers are way off the BOP’s own website, which reports that 119,500 inmates are vaccinated – 78% – but only 70.4% of the BOP’s 36,739 employees have gotten the shot.

[Note to Mike: it’s easier to fudge the numbers when you’re not simultaneously making the real data available to anyone with a smartphone.]

Rep. Thomas Massie (R-KY) said the BOP had told his staff that 4,738 BOP employees (12.9% of the workforce) had gotten exemptions – mostly religious – from taking the vaccine, and groused that “it’s kind of it’s interesting that the inmates have more rights [to refuse vaccines] than the officers themselves.” No one knows what the Congressman might think if he knew the numbers Director Carvajal had given him were wrong. For what it’s worth, Congressman, if the BOP is getting rid of staff who refuse the vaccine, inmates would happily accept the same fate. 

One of the only tense moments in the hearing came when Rep. Cori Bush (D-MO) braced Carvajal on conditions brought to her attention by the National Council for Incarcerated and Formerly Incarcerated Women and Girls. Bush said:

In these emails, women in federal custody detail horrifying accounts of not being allowed to get out of their beds all day because of COVID lockdowns, being forced to eat expired food, having little to no access to medical services to treat cancers and other underlying conditions, having to pay $2.00 to file a sick complaint. This is all happening under your watch. These are complaints coming from not one or not two facilities but five different facilities, which makes clear that these issues are not isolated… These women cannot hold you accountable, Mr. Carvajal, they cannot, but we can, and I would like to use this opportunity to ask you questions that they cannot directly ask you out of fear of retaliation.

schultz220207The Director responded, “I’m not aware of those particular complaints, but I’m certainly interested in hearing from you and your staff so that we can look into them, because I find that – if that happened – I find it unacceptable.” He assured Bush that “we take all allegations seriously…” Not that I disagree – I would never dispute what the BOP director says – but I have hundreds of emails from inmates who beg to differ.

Carvajal explained to the legislators, “I’d like to stress something – we’re not here for punishment, the taking of their time by the courts and the criminal justice system, that’s the punishment, we’re here to house people that are remanded to our custody and more importantly to prepare them to reenter society, keep them safe while they’re here. We’re not here as punishment, that’s not how we look at this agency.”

The hearing had a few other bumps. Rep. Steve Cohen (D-TN) complained that the BOP “has unfortunately failed to protect the health of those within their custody and their staff from COVID-19 or address chronic understaffing [and] the BOP has also lacked transparency and vigor and implementing important criminal justice reforms such as the First Step Act.”

Jackson-Lee raised the reports filed by epidemiologist Homer Venters, M.D., on MDC Brooklyn and FCC Lompoc. She noted that “his investigation revealed [a] disturbing lack of access to care when a new medical problem is encountered…” Venters noted that at MDC Brooklyn, “it quickly became apparent that not only were many people reporting that their sick call requests, including COVID-19 symptoms, were being ignored, but that the facility was actually destroying their original request which violates basic correctional standards. [T]his is an accountability hearing… these are human beings deserving of respect and dignity, men and women…”

Carvajal said he was “aware of the report, we looked into it, we followed up, I won’t discuss that specific incident, but I will reassure you that each of our institutions has an outpatient health clinic that’s overseen by a board-certified physician and a medical director. We have outside oversight… If there’s a mistake made or something of that nature, we’re going to look into it and do something about it correct the issue.”

potemkin220207He did not mention and the Subcommittee did not note that the BOP’s “follow-up” consisted of vigorously contesting every aspect of Venters’ report in litigation over MDC Brooklyn.

It may not be much of a plan to testify before a subcommittee hoping that the legislators haven’t done their homework. But Director Carvajal seems to have capped his career doing just that, and with some success.

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

Hearing, Oversight of the Federal Bureau of Prisons (Feb 3, 2022)

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

– Thomas L. Root

Did the BOP’s New ETC Rules Get Hijacked By Biden? – Update for January 18, 2022

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

THE UNSEEN HAND WRITES NEW BOP EARNED TIME RULES?

The Federal Bureau of Prisons last week announced final rules for granting federal time credits (“FTCs”) to inmates who successfully complete specified programs designed to reduce recidivism or engage in what the statute calls “productive activities.”

In November 2020, the BOP finally got around to proposing rules for granting FTCs under the incentives program authorized two years before in the First Step Act. The agency proposed a rule that would require 240 classroom hours of successful programming in order for an inmate to receive a mere 15 days credit on his or her sentence. At the time, I said, “In the BOP, a 500-hour program takes 12-18 months to complete. That may seem like a fairly substantial commitment for a month more of home confinement. But it is consistent with what we’ve come to expect from the BOP: given a chance to interpret the extent of its authority to be lenient, it invariably interprets that authority in the most chary way possible.”

[Editor’s note: Yes, I said “most chary.” My wife the grammarian, has since pointed out that the superlative of “chary” is “chariest.” I’d fire her, but she’s been right too many times before.]

icecreamsundae210118In my experience practicing administrative law back in the day, when an agency rolled out proposed rules in a Notice of Proposed Rulemaking for public comment, the final product looked a lot like what had been proposed, perhaps with a tweak here and there. Once in a blue moon, an agency might back off after an especially loud and sustained hue and cry from the industry and public, but rulemaking was a lot like ordering an ice cream sundae – you could specify which sprinkle, nuts, sauce, and cherry you wanted on it, but the 95% of it that was ice cream was fixed and was not going to change.

The history of agency rulemaking since the passage of the Administrative Procedure Act of 1946 makes what happened to the FTC rules so puzzling. It’s like the BOP specified an ice cream sundae, but delivered a cup of mashed potatoes and gravy instead.

The new rules, already being applied to hundreds if not thousands of inmates, represent a total repudiation of the BOP’s proposed rules announced a year ago.

I reported on the changes in the rules – the “what” – last Friday. What I didn’t talk about was the “why.” Even now, I am unsure of what caused the sea change at the BOP, but there are some hints. Traditionally, the BOP director has scrambled to imprint any favorable program with his or her initials. Yet, last week, BOP Director Michael Carvajal was strangely silent, while Attorney General Merrick Garland took a victory lap in a press release. The fact that the Attorney General issued a statement supporting the new rules, but Carvajal did not, suggests that the Biden DOJ grabbed hold of the FTC process after the BOP sought to impose Draconian limitations on the program.

sycophant220118Several members of Congress – such as Richard Durbin (D-IL), chairman of the Senate Judiciary Committee, Sheldon Whitehouse (D-RI), John Cornyn, (R-TX) and Cory Booker (D-NJ), on the Senate side, and Hakeem Jeffries (D-NY), on the House side – criticized the proposed rules in public comments. That may have played a factor as well. The BOP’s report adopting the final rule mentioned their comments, such as this excerpt from Sens. Whitehouse’s and Cornyn’s filing:

The proposed rule’s definition of a “day” of program participation does not adequately reward engagement with [EBBR programs] and PAs consistent with the First Step Act. . . Because BOP programs do not run for eight hours per day, the proposed rule would require individuals to attend an EBRR or PA for several calendar days before they earned a full “day” of time credit. . . It was not our intent as drafters of the legislation that BOP define a “day” in this way. Nor did Congress ever consider it. . . The proposed rule’s narrow definition of a “day” does not adequately incentivize program participation and reduce recidivism as intended by the First Step Act.

The fact that the legislators’ comments were singled out approvingly – maybe even fawningly – in the report would permit a reasonable person to infer that the BOP was sending the two Judiciary Committees a message that their concerns were being addressed.

The Hill noted that the new rules were announced “just one week after the DOJ revealed that BOP Director Michael Carvajal would be resigning from his post. He had faced criticism during his time as chief of the bureau.” Fox News said “the Biden administration has faced increased pressure from both Democratic and Republican lawmakers to do more to put in place additional aspects of the First Step Act, and the bureau has been accused of dragging its feet.” Associated Press observed that the final rules came “about two months after the department’s inspector general sounded an alarm that the Bureau of Prisons had not applied the earned time credits to about 60,000 federal inmates who had completed the programs.”

It seemed strange that several media outlets connected the Director’s departure with the release of the rules. It is fair to note that there is no logical reason for his announcing the retirement on January 6th, especially when the actual date was left open (he said he would stay on until a new director is appointed). The timing, as The Hill implied, may be linked to the dramatic turn in the BOP’s approach to FTCs.

bidensuperman210201

Likewise, Fox News may have settled on another reason. President Biden has taken a lot of heat recently for doing nothing on criminal justice reform. Probably because he has done nothing. Hijacking the rules and rewriting them the way Congressional Democrats would love and Congressional Republicans would accept may have been seen by the White House as a cheap fix: liberal FTC rules did not require Congressional approval and conservatives could hardly complain, because all Biden was doing was carrying forward a program President Trump proudly owned, the First Step Act.

Don’t get me wrong. I’m not complaining that the BOP did the right thing. I’m puzzled, that’s all.

Associated Press, Thousands of federal inmates to be released under 2018 law (January 13, 2022)

Dept of Justice, Justice Department Announces New Rule Implementing Federal Time Credits Program Established by the First Step Act (January 13, 2022)

BOP, Final Rules for Federal Time Credits Program (January 13, 2022)

BOP, FSA Time Credits (January 13, 2022)

The Hill, Thousands of federal inmates being released this week under law signed by Trump (January 13, 2022)

Fox News, Federal inmates to be released under ‘time credits’ program (January 13, 2022)

– Thomas L. Root

COVID Outlasts Carvajal – Update for January 10, 2022

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

BOP DIRECTOR DISCOVERS HOW LONELY IT CAN BE AT THE TOP

snowball220110I wrote a little last week about the resignation of Federal Bureau of Prisons director Michael Carvajal, but it’s worth revisiting, if only to round up the reaction and context. Summed up neatly, he was rolled by events he didn’t see coming.

Recall that Carvajal last week announced he’s retiring, a decision that came six weeks after Sen. Richard Durbin (D-Illinois), Chairman of the Senate Judiciary Committee, demanded that Attorney General Merrick Garland fire him. Carvajal, a 30-year BOP veteran, was appointed director in February 2020.

A day after Carvajal’s announcement, BOP deputy director Gene Beasley announced his retirement effective May 31.

The BOP said Carvajal will stay on for an interim period until a successor is named. It is unclear how long that process would take.

The Associated Press said that Carvajal has “been at the center of myriad crises within the federal prison system.” To a certain extent, he stepped into the messes rather than made them himself. For example, the AP reported that more than 100 Bureau of Prisons workers have been arrested, convicted, or sentenced for crimes since the start of 2019, including a warden charged with sexually abusing an inmate. Those problems have been long festering. The scandal at MCC New York – brought to public attention with the 2019 suicide of Jeffrey Epstein – hardly started when Carvajal became director. Likewise, BOP employees misbehaving is not a new phenomenon. But for better or worse, the bad press came down on the BOP while Carvajal was at the helm.

Carvajal was hardly a BOP virgin. He served as assistant director from 2018 to 2020, so one could reasonably conclude he was aware of messes in Atlanta, New York, and elsewhere when he took office.

But the one epic fail that belongs solely to Carvajal is COVID. He took office just as COVID-19 was taking off, and one could argue he never took his blinders off. “I don’t think anybody was ready for this Covid, so we’re dealing with it just as well as anybody else and I’d be proud to say we’re doing pretty good,” Carvajal told CNN in April 2020.

flatten200609“Doing pretty good?” Two months into the pandemic (about 48,000 inmate COVID cases ago), Carvajal confidently told the Judiciary Committee that “at this point, we have more recoveries than new infections. And I believe that this shows that we are now flattening the curve.” Six months later, the total number of inmate COVID cases had climbed to over 24,000. Nevertheless, Carvajal told the House Subcommittee that “the Bureau has a sound pandemic plan in place and a well-established history of managing and responding to various types of communicable disease outbreaks.”

As of today, more than 50,000 BOP inmates have contracted COVID, at least 290 federal inmates are dead, and the BOP’s ham-handed response has been successfully challenged in court in Connecticut, Ohio, and California, to mention a few locations.

The AP reported that Carvajal’s term included “a failed response to the pandemic, dozens of escapes, deaths and critically low staffing levels that have hampered responses to emergencies.” The Washington Post reported, “With Carvajal presiding over the agency for effectively the entirety of the pandemic so far, about one in three Bureau of Prisons inmates has tested positive for the virus, according to agency data, a rate nearly double that of the general U.S. population.”

Jose Rojas, president of the Southeast Council of Prison Locals, AFGE – federal correctional officers’ union – was derisive. “Destructive actions by Carvajal have crippled this agency to the point of uncertainty, like a tornado leaving destruction behind… He was a disgrace to our agency. Good riddance.”

notdonegood220110Durbin issued a statement that was no more flattering: “For years, the Bureau of Prisons has been plagued by corruption, chronic understaffing, and mismanagement. In the nearly two years since Director Carvajal was handpicked by then-Attorney General Bill Barr, he has failed to address the mounting crises in our nation’s federal prison system, including failing to fully implement the landmark First Step Act. His resignation is an opportunity for new, reform-minded leadership at the Bureau of Prisons.”

That’s the best observation: No matter whether Carvajal was a victim, a rapscallion, or a bumbler, perhaps the Administration will seize this opportunity to pick “new, reform-minded leadership,” someone from outside the Bureau, someone who will be a champion of what Congress has mandated in the First Step Act, the CARES Act, and other prison reform measures.

Associated Press, US prisons director resigning after crises-filled tenure (January 6, 2022)

Washington Post, Bureau of Prisons director to resign after scandal-plagued tenure during pandemic (January 6, 2022)

CNN, Bureau of Prisons leader retiring under political pressure from lawmakers seeking his ouster (January 5, 2022)

Testimony of Michael Carvajal before the Senate Judiciary Committee (June 2, 2020)

Statement of Michael D. Carvajal before House Committee on the Judiciary Subcommittee on Crime, Terrorism, and Homeland Security (December 2, 2020)

Northwest Arkansas Democrat-Gazette, Two execs of prisons resigning (January 7, 2022)

Durbin Statement on Resignation of Director Carvajal from Federal Bureau of Prisons (January 5, 2022)

– Thomas L. Root

“Mikey, We Hardly Knew Ye” – BOP Director Resigns (and Other Stories) – Update for January 6, 2022

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

BOP BLUES

A lot’s going on in the BOP, and little of it can be lifting spirits at Central Office.

carvajal220106Carvajal’s Out: Federal Bureau of Prisons Michael Carvajal announced yesterday that he’s resigning, six weeks after the Chairman of the Senate Judiciary Committee demanded that Attorney General Merrick Garland deliver his head on a platter.

Carvajal, appointed during the Trump administration, has “been at the center of myriad crises within the federal prison system,” according to the Associated Press. The BOP characterized the decision as a “retirement,” which – after 30 years as a BOP employee – Carvajal is certainly entitled to do.

The BOP said he will stay on for an interim period until a successor is named. It is unclear how long that process would take.

The beginning of the end for Carvajal came in November, when the AP reported that more than 100 Bureau of Prisons workers have been arrested, convicted, or sentenced for crimes since the start of 2019, including a warden charged with sexually abusing an inmate. The AP stories apparently prompted Sen. Richard Durbin (D-Illnois), chairman of the Judiciary Committee, to call for Carvajal’s removal.

Carvajal took office just as COVID-19 took off, and included “a failed response to the pandemic, dozens of escapes, deaths and critically low staffing levels that have hampered responses to emergencies,” the AP said.

“We are very appreciative of Director Carvajal’s service to the department over the last three decades,” DOJ spokesman Anthony Coley said in a statement. “His operational experience and intimate knowledge of the Bureau of Prisons — the department’s largest component — helped steer it during critical times, including during this historic pandemic.”

Atlanta: Last week, Forbes magazine got its hands on an internal BOP memorandum from 2020 revealing just how much of a mess USP Atlanta was a year before the Bureau took the extraordinary step of shipping out 1,100 inmates and shuttering the facility for an extensive rehabilitation.

jailbreak211025The Atlanta Journal-Constitution reported in 2017 about the “Wild West” atmosphere that defined USP Atlanta and its satellite minimum prison camp. According to an August 31, 2020 memorandum to the Southeast Region of the BOP, “USP Atlanta presents significant security concern for the Southeast Region … [which] requires immediate corrective action.”

Forbes reported the memo resulted from a Security Assessment performed just months after USP Atlanta passed its Program Review with a “Good” score. Program Reviews examine the adequacy of controls, efficiency of operations, and effectiveness in achieving program results. Institutions receiving a grade of “Good” qualify for a break of three years before another such review. Forbes reported that some have questioned whether the reviewers and facilities managers “have become too chummy because members who conduct those reviews consist of BOP management from peer institutions.”

Forbes said, “These are unprecedented times for the BOP. MCC New York closed earlier this year because the building had fallen into disrepair, staff corruption cases abounded and the widely reported suicide of Jeffrey Epstein. FCI Estill (South Carolina)… was hit by a tornado that ripped up the fence, tore off parts of the roof and caused heavy damage to the facility. Within days of the incident, hundreds of inmates were transferred to a prison hundreds of miles away in Pennsylvania. The remaining camp level… inmates now live in deplorable conditions at the damaged institution. As USP Atlanta’s problems continue to mount, it is just one more blow to an agency that appears to be in free-fall.

A BOP employee who works at another institution and who also reviewed the memorandum told Forbes, “The items listed are not a surprise. If they did this same type of assessment at other USPs they would get the same result, or close to it.”

violent160620Hazelton: The correctional officer who is president of AFGE Local 420 AFGE last week blamed increasing violence at USP Hazelton – contraband weapons, a “massive” fight in a housing, and a stabbing on Christmas Eve – on a lack of leadership from the warden, Richard Hudgins.

“Over the last few weeks there has been an immense amount of violence heightened at the prison due to the lack of leadership from our warden who is retiring this month,” Union President Justin Tarovisky said.

The BOP declined to comment to the Morgantown Dominion-Post on “anecdotal allegations,” but issued a statement that “We can assure you there are qualified management staff at the institution to ensure FCC Hazelton operates in a safe and secure manner and provides the programs that are critical for successful prisoner reform.”

FMC Carswell: A Southern Illinois federal judge last week issued a 61-page opinion ordering the BOP to evaluate ther request of a transgender inmate – now held at FMC Carswell – for gender confirmation surgery.

trans220106Chief Judge Nancy J. Rosenstengel ruled that the BOP’s Transgender Executive Council must evaluate the inmate, who is a biological male seeking surgery to transition to female, within a month. The Judge issued several pages of specific instructions and timelines for the BOP to meet, depending on whether it recommends or refuses to recommend the inmate for surgery.

The opinion, which has gotten media attention due to its holding that the BOP’s failure to address transgender matters as an 8th Amendment violation, is also noteworthy for the judge’s scathing dismissal of BOP excuses for not acting before, inasmuch as the inmate has served almost 30 years in BOP custody and always claimed gender dysphoria. “Administrative convenience and cost may be, in appropriate circumstances, permissible factors for correctional systems to consider in making treatment decisions,” the judge wrote. However, “the Constitution is violated when they are considered to the exclusion of reasonable medical judgment about inmate health.”

You Just Had the Wrong Prosecutor:  Last week, as Ghislaine Maxwell was convicted of sex trafficking offenses for assisting Jeffrey Epstein in procuring and grooming underage girls, the US Attorney in Manhattan quietly dismissed all charges against the two BOP correctional officers accused of felonies for falsifying reports connected to the 2019 Epstein suicide at MCC New York.

jailfree140410Prosecutors had said the COs napped, caught up on the news, and shopped for motorcycles and furniture instead of doing their rounds at the MCC. Epstein was held there while awaiting trial on sex trafficking and sexual-abuse charges. Last May, the COs entered into a deferred prosecution agreement where prosecutors agreed not to bring their case to trial until after they finished cooperating with an investigation by the DOJ Inspector General. The OIG has yet to release a report in connection with the investigation.

The conservative publication American Thinker said, “The message being sent by the light punishment for the prison guards whose negligence enabled Epstein’s death is pretty clear. If Maxwell were to “commit suicide” or “have an accident,” any guards implicated in negligence permitting such a death may face minimal consequences.”

Associated Press, US prisons director resigning after crises-filled tenure and scrutiny over his leadership (January 5, 2022)

Forbes, A Review of the Federal Prison In Atlanta Shows an Agency in Crisis (December 31, 2021)

BOP, BOP Director Announces Plans to Retire (January 5, 2022)

Morgantown Dominion-Post, Hazelton union concerned about mounting violence in prison (December 28, 2021)

Law and Crime, ‘She Is Running Out of Time’: Judge Orders Gender Confirmation Surgery Review for Federal Prison Inmate (December 28, 2021)

Iglesias v. Fed. Bureau of Prisons, 2021 U.S. Dist. LEXIS 245517 (S.D.Ill. Dec. 27, 2021)

Business Insider, Federal prosecutors quietly dropped their case against Jeffrey Epstein’s jail guards in the middle of Ghislaine Maxwell’s trial (December 30, 2021)

American Thinker, Coincidental or not, dropping criminal charges against Epstein’s prison guards sends a message to Ghislaine Maxwell the day after her conviction (January 1, 2022)

– Thomas L. Root

Rudolph Never Had It This Bad… – Update for December 27, 2021

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A LUMP OF COAL FOR CENTRAL OFFICE

The other reindeer used to laugh and call Rudolph names… but not in publications circulating on Capitol Hill.

rudolph211227First, Forbes ran a piece a week ago on BOP employee misconduct. Forbes noted that employees are rarely filed, with the BOP “preferring to offer them retirement or reassignment. The article pointed out that then-Attorney General William Barr told a Fraternal Order of Police conference after Jeffrey Epstein’s death that “we are now learning of serious irregularities” at MCC New York, where Epstein was found dead …” and “[we] will get to the bottom of what happened and that there will be accountability.”  

In the end, Forbes said, “two corrections officers were indicted (later entered into a deferred prosecution agreement) while nobody in executive management was charged.” Warden Lamine N’Diaye, who was in charge of notorious MCC New York at the time, was never accused of wrongdoing. He was promoted to be warden at FCI Fort Dix, a considerably larger institution. Edsel Ford, Robert S. McNamara. Lamine N’Diaye… upward failures all.

Retirement is another way the BOP rids itself of an embarrassing employee. There is less press, and the agency can force responsibility on the taxpayers to pay a lifetime pension in exchange for hiding an indiscretion from the public. Plus, retirement derails most investigations by the DOJ Inspector General, because an agency generally cannot take disciplinary action against a retired employee.

badapple211227Once in a while, however, the employee goes to the mat before the Federal Mediation & Conciliation Service, and the public gets a view of bad behavior inside the agency. Forbes reported on a Dec 9 FMCS order upholding the firing of an FCI Miami employee who paid inmates with food for performing his job, including using a staff computer to write emails, place online orders for supplies, search the BOP’s workers’ compensation data, take telephone calls for [the staff member], prepare Equal Employment Opportunity complaints and write correspondence to FCI Miami’s warden regarding a negative performance review” the staff member had gotten.

Meanwhile, the Atlanta Journal-Constitution reported details from a recently unsealed indictment against a BOP employee accused of conspiring with two inmates to smuggle drugs into USP Atlanta.

None of this is helpful to BOP Director Michael Carvajal, whose firing was demanded a month ago by Sen Richard Durbin (D-Illinois) after news broke about BOP employees committing serious crimes. Last week, a former BOP Director threw gasoline on the dumpster fire in a piece published in The Hill. Perhaps, to pile on the metaphors, I should say the article  threw Carvajal a lifeline… with an anvil tied to the other end.

fault200814Former BOP Director Hugh Hurwitz said it’s not necessarily the director’s fault (but he did not suggest that Carvajal not be fired). Federal prisons “are in crisis, riddled with deep and systemic ills that won’t be cured by simply replacing the BOP chief,” Hurwitz wrote. “In fact, we’ve already tried that. Carvajal, appointed last year, became the sixth director or acting director in just five years.”

Hurwitz called for sentencing reform, including “mandating a greater reliance on drug courts, community service and other alternatives to prison, such as halfway houses. It also means eliminating mandatory minimum penalties for drug crimes…”

As for the BOP itself, Hurwitz urged the Attorney General to adopt a “recommendation from the Council on Criminal Justice’s Task Force on Federal Priorities, which called for creation of an independent oversight board for the BOP. This would bring outside expertise to bear on the agency’s multiple challenges while retaining the career leadership that historically has served the agency well.”

Hurwitz called for rebuilding the federal criminal justice system “so that it is smaller, less punitive, more humane and safer for all. With political will, independent oversight and an unwavering commitment, we can make holistic change to a system long in need of it.”

The drumbeats continue and the bad press rolls on. Can the Director hold on?

Forbes, FCI Miami Federal Prison Employee Fired For Using Inmates To Help Perform His Job (December 21, 2021)

Federal Times, A BOP supervisor abused their position then quit. What happens next? (January 6, 2020)

Atlanta Journal-Constitution, Prison officer indicted in smuggling scheme never met co-defendants, lawyer says (December 22, 2021)

The Hill, To fix our prison system, we need far more than a change in leadership (December 22, 2021)

– Thomas L. Root

Durbin Doubles Down on Dumping Director – Update for December 7, 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.

DURBIN AGAIN CALLS FOR BOP DIRECTOR’S FIRING

fired171218Arguing that Bureau of Prisons Director Michael Carvajal “has shown no intention of reforming the institution,” Senator Richard Durbin (D-Illinois) repeated his call that demanded his firing in a speech last Thursday on the floor of the Senate.

Durbin, the second-ranking member of the Senate (and chairman of the Senate Judiciary Committee), cited a recent Associated Press investigation that revealed over 100 BOP officers and employees had been criminally charged in the past two years – a rate more than double the Dept of Justice average – for crimes ranging from smuggling contraband into facilities to sexual abuse of prisoners. “For years,” Durbin said, “the Bureau of Prisons has been plagued by corruption, chronic understaffing, and misconduct by high-ranking officials.” He also cited the 2019 suicide of sex criminal Jeffrey Epstein at MCC New York, which closed earlier this year.

AP reported last Thursday that “under Carvajal’s leadership, the agency has experienced a multitude of crises, from the rampant spread of coronavirus inside prisons and a failed response to the pandemic to dozens of escapes, deaths and critically low staffing levels that have hampered responses to emergencies.”

DruckDurbin, whose Judiciary Committee exercises oversight of the BOP, first called for Carvajal’s firing on November 16, after the release of the AP’s investigation. The AP found what it called “rampant criminal activity” by BOP employees and alleged the “agency has turned a blind eye to employees accused of misconduct.”

In his speech, Durbin cited the BOP’s appointment of Lamine N’Diaye as warden at FCI Fort Dix. N’Diaye was warden at MCC New York when celebrity child molester Jeffrey Epstein died, allegedly as a suicide. The AP reported that the BOP previously tried to place N’Diaye in the Fort Dix job, “but the move was stopped by then-Attorney General William Barr after the AP reported the transfer.” In January 2020, the BOP said it would defer the N’Diaye’s transfer to the FCI Fort Dix position until the Epstein investigation was completed but later made the switch anyway.”

“In the nearly two years since Director Carvajal took control of the Bureau, he has failed to address the mounting crises in our nation’s federal prison system,” Durbin said Thursday. “It is far past time for new, reform-minded leadership in the Bureau of Prisons.”

Trump Administration Attorney General William Barr appointed Carvajal. However, current Deputy Attorney General Lisa Monaco said recently that she still had confidence in his leadership.

The AP reported last June that the Biden administration was considering replacing Carvajal, one of the few remaining Trump administration holdovers at DOJ.

bureaucracy180122Many think it’s time to do so. BOP is “an agency that is largely unaccountable to the public,” the “people that it purports to protect” and even its staff, Amy Fettig, executive director of the Sentencing Project told the Washington Post last week. “We should never have a government agency that operates with so little public accountability,” Fettig said about the BOP. When we do, she said, “bad things happen.”

As if to put an exclamation point to that, the US Attorney for Northern California announced last Friday that John Bellhouse has been charged with several counts of sexual abuse of a woman prisoner at FCI Dublin.

Business Insider, Top Democrat calls on Biden administration to fire the Trump-era head of federal prisons, citing inmate abuse and the death of Jeffrey Epstein (December 2, 2021)

AP, Durbin: Prisons chief has ‘no intention of reforming’ system (December 2, 2021)

AP, AP Exclusive: Feds backtrack on transfer of Epstein warden (January 28, 2020)

Washington Post, Lawbreakers in federal prisons include prison staff, report finds; senators demand accountability (December 1, 2021)

Press Release, US Attorney for Northern California, Federal Correctional Officer Charged With Sexual Abuse of an Inmate (December 3, 2021)

– Thomas L. Root

Durbin to Carvajal: ‘Drop Dead’ – Update for November 18, 2021

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BOP, ALREADY A ‘HOTBED OF ABUSE’, DITHERS WHILE INMATES SUFFER, INSPECTOR GENERAL SAYS

Turkeys may not be the only creatures with heads on the chopping block.

dropdead211118US Senate Majority Whip Dick Durbin (D-Illinois), chairman of the Senate Judiciary Committee, last Tuesday publicly demanded that Attorney General Merrick Garland fire Federal Bureau of Prisons Director Michael Carvajal, who was appointed during the Trump Administration.

Durbin’s call came after the Associated Press reported that since the beginning of 2019, over 100 federal prison workers have been arrested, convicted or sentenced for crimes, including the warden of FCI Dublin – a women’s prison in central California – indicted for sexual abuse, an associate warden at MDC Brooklyn charged with killing her husband last August, guards taking cash to smuggle drugs and weapons, and supervisors stealing property such as tires and tractors.

The Associated Press said its investigation revealed that the BOP “is a hotbed of abuse, graft and corruption, and has turned a blind eye to employees accused of misconduct. In some cases, the agency has failed to suspend officers who themselves had been arrested for crimes.” While the BOP workforce amounts to one-third of Dept of Justice personnel, its employees account for two-thirds of the criminal cases against DOJ workers in recent years. Of 41 DOJ employee arrests this year, 28 were of BOP employees or contractors.

The AP report was too much for Durbin, who said,

Director Carvajal… has overseen a series of mounting crises, including failing to protect BOP staff and inmates from the COVID-19 pandemic,failing to address chronic understaffing, failing to implement the landmark First Step Act, and more. It is past time for Attorney General Garland to replace Director Carvajal with a reform-minded Director who is not a product of the BOP bureaucracy.

choppingblock211118On Wednesday, the DOJ Inspector General put an exclamation point on Durbin’s well-justified rant. An IG report found that three years after passage of the First Step Act, the BOP has yet to implement one of the linchpins of the legislation, to reduce recidivism by giving prisoners incentives to successfully certain educational programs and productive activities. The primary holdup? BOP management and union staff have been unable to come up with ground rules for meetings to discuss how the educational and incentives programs should be implemented.

Remember how the 1968 Paris Peace Talks were stalled for months over whether the table over which “official conversations” would be held should be round or rectangular? Yeah, this has been something like that. BOP’s national union won’t conduct formal policy negotiations on Zoom, but rather demanded in-person negotiations. BOP management refused. The disagreement has resulted in a lack of formal policy negotiations for a period of 20 months, which has stalled the development of more than 30 BOP policies, about half of which were created or revised because of First Step.

The First Step Act requires the BOP to provide Evidence-Based Recidivism Reduction (EBRR) programs and productive activities to all inmates in its custody no later than January 15, 2022. The BOP has taken the position that this means that no credits need be awarded until then. No one believes that. In litigation, even the United States Attorney’s Offices defending the BOP have abandoned that tortured interpretation of the Act. The IG’s report said:

In August 2021, the BOP told us that the [First Step Act] contemplates a phased-in approach to time credit implementation and requires that all inmates be assigned to programming based on their assessments no later than January 15, 2022. As a result, the BOP stated that “implementation of time credits is fully permissible as a phased approach.” While we agree that the FSA affords the BOP a 2-year phase-in period to provide all inmates with EBRR programs and productive activities, we also note that the phase-in statute makes no reference to delaying the use of incentives and rewards, including time credits. Instead, the statute states that by January 15, 2020, the BOP “may offer to prisoners who successfully participate in such programs and activities [with] incentives and rewards.”

As a result of the BOP’s failure to talk to its union, as many as 60,000 inmates have not properly received earned-time credits for successful completion of First Step Act’s recidivism programs, the Department of Justice inspector general found. “We are concerned that the delay in applying earned time credits may negatively affect inmates who have earned a reduction in their sentence or an earlier placement in the community,” the report stated.

unsupervised211118Inmates around the country have filed petitions for habeas corpus against the BOP, demanding credit, with mixed results. Even now, the BOP stands firm. The courts are wrong. The US Attorneys are wrong. And, the latest, the Inspector General is wrong:

BOP disagrees with OIG’s characterization of the agency’s delayed implementation of FSA requirements… Although the COVID- 19 pandemic has created unprecedented challenges for the federal government, BOP has taken significant steps in implementing the FSA’s requirements, consistent with the FSA’s phased approach, and has complied with all mandatory statutory guidelines to-date.

Happy Thanksgiving, Director Carvajal. Use some of the long weekend to dust off your resume.

Press release, Durbin Calls On AG Garland To Dismiss BOP Director Carvajal (November 16)

Associated Press, Workers at federal prisons are committing some of the crimes (November 14, 2021)

Associated Press, Durbin calls for Garland to remove federal prisons director (November 17, 2021)

Forbes, Office of Inspector General Critical of Federal Prison Implementation of First Step Act (November 17, 2021)

ABC, DOJ finds Bureau of Prisons failed to apply earned time credits to 60,000 inmates (November 17, 2021)

Dept of Justice, Office of Inspector General, Management Advisory Memorandum 22-007 (November 16, 2021)

– Thomas L. Root

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

The Bad News Bears Visit the BOP – Update for June 8, 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.

LAST WEEK WAS NOT THE BEST  FOR THE BOP

You should understand if Bureau of Prisons Director Michael Carvajal stops reading the news after last week.

herd210609Writing in Forbes, Walter Pavlo explained why the vaccine may not fix the BOP’s COVID-19 problem. “The vaccine was made available to inmates and BOP staff earlier this year. The numbers of vaccinations have not been impressive, which hovers around 50% for both inmates and staff… not a good number,” Pavlo wrote. “However, even if those vaccination numbers increase, a recent study suggests that that might not be enough to control infections in prison.”

As of last Friday, 19,000 BOP staff (51.5%) and 75,150 inmates (49.2%) have been vaccinated. Eighty-five inmates and 130 staff (in 68 facilities) have COVID, with 253 federal prisoners dead.

Pavlo cited an article published in the New England Journal of Medicine (NEJM) that found “even a vaccine with seemingly adequate efficacy, pace, and coverage may be insufficient to alter the fundamental population dynamics that produce high disease prevalence,” such as prisons. This is due to “the extraordinarily high rate of transmission in jails and prisons attributable to rampant overcrowding, inadequate testing and health care, high-volume daily inflow and outflow of staff and detainees, lack of personal protective equipment, and normalized systematic neglect of the welfare of incarcerated people.”

“Vaccination of incarcerated people is important for changing this dynamic, but it is not enough,” the NEJM authors concluded. “We believe that it must be coupled with large-scale decarceration to increase the real-world effectiveness of vaccination, disrupt wide-ranging viral transmission chains, and turn off the epidemiologic pump that puts the health of all at risk from mass incarceration.”

fail200526In a separate article, Pavlo reported “it will take years… to discover the depths of the failures with the BOP response to the COVID-19 pandemic. The Department of Justice Office of Inspector General has released multiple reports on the BOP’s reaction to COVID-19 and those reviews have been quite critical of the agency… One of the most cited weaknesses by OIG has been in the area of staffing, particularly in the availability of medical staff.”

The two BOP correctional officers who lied in their reports about monitoring Jeffrey Epstein when he killed himself in August 2019 got a sweetheart deferred prosecution deal from the government. The New York Daily News last week reported the COs planned to defend themselves as scapegoats for a deeply dysfunctional BOP system had they gone on trial.

Sources close to the pair, as well as insiders at the MDC New York, the Daily News reported, offered possible reasons why the feds backed off of the case. The sources said falsification of documents is common at the jail and throughout the Bureau of Prisons. One source described falsely filling out paperwork as “closer to a norm than an anomaly” in federal lockups.

Finally, a disturbing news release from the BOP last week reports for the first time that Manuel Roach, an inmate at USP Leavenworth, died of COVID – four and a half months ago.

COVIDdeath201001The BOP said Mr. Roach caught COVID last September, but was “converted to a status of recovered following the completion of medical isolation and presenting with no symptoms.” At least, no symptoms for four months, until he died of COVID at the end of January.

The June 2 news release does not explain why it took the BOP another four months to figure out he had died of the pandemic.

Benjamin Barsky, et al, Vaccination plus Decarceration — Stopping Covid-19 in Jails and Prisons (New England Journal of Medicine, April  29, 2021)

Forbes, Even After Vaccine, Federal Prisons Still Have COVID-19 Concerns (May 31, 2021)

Forbes, Office Of Inspector General Critical Of Bureau of Prisons In Extensive Reports (May 31)

New York Daily News, Correctional officers who slept while Jeffrey Epstein hanged himself planned to slam federal prison system at trial (May 31, 2021)

BOP, Inmate Death at USP Leavenworth (June 2, 2021)

– Thomas L. Root

We’ve Got The Shorts – Update for April 30, 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.

Today, this being the end of the month, we’re cleaning off our desktop…

SOME ODDS AND ENDS FROM LAST WEEK

Banned in Moscow: In response to President Biden’s expulsion of Russian diplomats because of the massive Solar Winds computer hack discovered last December, Vladimir Putin last week banned eight US officials from entering Russia.

The excluded government honcho include current top intelligence officials, former National Security Advisor John Bolton, FBI Director Christopher Wray, and… BOP Director Michael Carvajal.

carvajal210430Huh? The media covering the story have explained the reasons for all of the expulsions except for Carvajal’s, which is usually noted as an afterthought.

Putin knows why Carvajal is on the list. Carvajal maybe knows. But no one else seems to have any idea.

The Hill, Russia blocks key Biden Cabinet officials from entering in retaliation for sanctions (April 16, 2021)


FMC Carswell Catching Heat for Inmate Death: The Ft Worth, Texas Star-Telegram reported last week on the death of Martha Evanoff at FMC Carswell.  The paper said that Evanoff “begged for medical attention for months, fellow inmates say, but was denied help until she died” on April 12.

Evanoff had surgery last November, but, according to a fellow inmate as well as Evanoff’s own emails to me, her intestines protruded through the surgical incision into her abdominal wall that had opened up. Ultimately the protrusion pinched the intestines shut, blocking them completely.

medmal170127“It was totally unnecessary. They could have done something to help her,” an inmate told the paper. “She is not the first person to die here from intestinal blockage.”

Another inmate reportedly said that Evanoff begged for help about the pain she was in, and “this place did nothing. Medical indifference = murder,” the inmate wrote. “And it is just as bad as having a knee on your neck…”

In an email Evanoff wrote to me in early February, she said, “I have been extremely ill — mainly bedridden with only bathroom trips. Visibly, I have these ENORMOUS, HARD TO MISS – Incision hernias all over my abdominal area… makes it impossible for me to do anything… One in particular sticks way out like I am pregnant with 8 children… Please help me out of here BEFORE I die here…”

A suit against FMC Carswell brought by over 70 named inmates alleging negligent medical care is pending in the US District Court for the Northern District of Texas.

Ft Worth Star-Telegram: Woman at Fort Worth medical prison died after staff ignored cries for help, women say (April 20, 2021)

Blake v. Carr, Case No 4:20cv807 (N.D. Texas)
Cohen Court Nixes Earned Time Credits: Former Trump lawyer Michael Cohen, on CARES Act home confinement until his sentence ends in November, brought a habeas corpus action to win earned time credits for programs he took while still locked up.

cohen200730Last week, Mike’s judge turned him down. “The statute clearly envisions that the program will be gradually implemented during the phase-in period. During this period, the [First Step] Act requires the BOP to provide evidence-based recidivism reduction activities for all prisoners before the two-year anniversary of the date that the BOP completes a risk and needs assessment for each prisoner, namely by January 15, 2022. The statute also requires the BOP during the phase-in period to develop and validate the risk and needs assessment to be used in the reassessments of risk of recidivism, while prisoners are participating in and completing evidence-based recidivism programs. But the statute does not require the BOP to begin awarding Earned Time Credits during the phase-in period. Indeed, the statute specifically leaves to the discretion of the BOP whether to expand existing programs and whether to offer to prisoners who successfully participate in such programs incentives and rewards.”

Cohen v. United States, Case No 20-CV-10833, 2021 US Dist LEXIS 75852 (S.D.N.Y. April 20, 2021)

Law and Crime, Federal Judge Denies Michael Cohen’s Petition to Cut His Sentence Under Trump’s First Step Act (April 20, 2021)

I’ll Be Watching You: In a report released last week, the Treasury Inspector General for Tax Administration said the IRS identified more than 4,500 fraudulent tax returns using a prisoner’s social security number in 2019, claiming refunds totaling over $14 million.

watching210430The amounts could have been higher, but since 2017, the IRS has set up processes to stop tax refunds from being issued to prisoners and people who steal prisoners’ SSNs. One of them involves the BOP and state departments of corrections complying with a requirement to provide the IRS with an annual list of all prisoners incarcerated within their prison system. Another program, which the Inspector General said should be expanded, is the Blue Bag Program, in which the IRS partners with the BOP and state corrections departments to identify potentially fraudulent tax returns and refunds. The IRS program automatically pulls prisoner tax returns for fraud analysis.

Accounting Today, IRS cracks down on prisoner tax fraud and identity theft (April 19, 2021)

– Thomas L. Root