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The Virus is Still With Us, But the Lawsuits Are Not – Update for July 8, 2020

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

COVID-19 REALITY KICKS BOP, INMATES HARD

Two weeks ago, the Federal Bureau of Prisons had COVID-19 on the run. The number of infected inmates had been falling, falling, falling, throughout June, a real bear market for the virus. The number of sick inmates fell to 1,256 by June 25 from a high of 2,109 only 17 days before, staff infections had slipped to 133 from an early June high of 190, and the number of BOP facilities experiencing infections was holding steady at 70. Inmate deaths seemed to have peaked at 92.

kick-em-outTwo weeks later, that real-world pandemic you’ve been hearing about has kicked the BOP in the ass. As of late today, inmate infections are up 81% to 2,109, staff infections have increased by 59%, and the number of BOP facilities with the virus on premises hit 93 (that is, a whopping 76% of all BOP facilities). Six more inmates have died, bringing the total to 98.

The BOP has been looking to tamp coronavirus outbreaks with testing, but testing is spotty. Overall, the BOP says it has tested 30,425 inmates, only about 23% of the BOP population. About 29% of the tests are coming back positive.

JAMAGraph200708

Meanwhile, an alarming report in the Journal of the American Medical Association today found that if coronavirus trotted through American society, it galloped through the prisons (see graph from the article, above). What’s more, the effects in prison were demonstrably worse. “The COVID-19 case rate for prisoners was 5.5 times higher than the U.S. population case rate of 587 per 100, 00” JAMA reported. “The crude COVID-19 death rate in prisons was 39 deaths per 100, 000 prisoners, which was higher than the U.S. population rate of 29 deaths per 100, 000 (Table).” And in a case of doing more with less, U.S. prisons managed to post this sadly impressive statistic despite the fact that in the general population, most of the deaths (81%) came from the cohort of people age 65 or older. But that group comprises 16% of the general population, but only 3% of prisoners. Even with all those extra old people in the general population, prisons managed to bury more COVID-19 victims per 100,000 than did society in general.

control200511The virus hasn’t peaked, but it is nevertheless safe to say that inmate class action suits against the BOP over the agency’s mismanaging of the COVID-19 pandemic has. Last week, the Massachusetts federal district court dismissed an inmate class action against FMC Devens after ruling that it could not proceed as a 28 USC § 2241 habeas corpus action. The inmate plaintiffs refused to proceed under the Prison Litigation Reform Act (which would have required each plaintiff to endure a six month-long administrative remedy process within the BOP before filing suit, thus dooming any hope for judicial relief while it could still do any good).

In a Southern District of New York class action against MCC New York, the court denied the inmate plaintiffs a preliminary injunction based on 8th Amendment violations. The court agreed that “the inmates are likely to show that the MCC’s response to the pandemic was ad-hoc and overlooked many gaps in its scheme to identify and isolate infected inmates — creating conditions that posed a substantial risk to the health of all inmates,” but that they probably could not show that the MCC’s failures were a result of “deliberate indifference to their plight” as opposed to bumbling negligence.

In North Carolina, FCC Butner inmates voluntarily dismissed their lawsuit that aimed their 8th Amendment rights were being violated by the prison’s handling of the COVID-19 pandemic. U.S. District Court Judge Louise W. Flanagan denied the inmates’ motion for a temporary restraining order and preliminary injunction June 11.

corona200313Nevertheless, an Oregon public defender filed suit last Tuesday alleging that “whether through indifference or incompetence, the Federal Bureau of Prisons is endangering the lives of individuals entrusted to its care by failing to establish consistent and effective safeguards to protect them from the coronavirus.” The suit targets FCI Sheridan, and was brought on behalf of a single inmate. Just in the past week, Sheridan reported its first COVID-19 case.

Journal of the American Medical Association, COVID-19 Cases and Deaths in Federal and State Prisons (July 8, 2020)

Fernandez-Rodriguez v. Licon-Vitale, 2020 U.S. Dist. LEXIS 116749 (S.D.N.Y. July 2, 2020)

Grinis v. Spaulding, Case No. 1:20cv10738 (D.Mass)

Wake Weekly, Butner Inmates Withdraw Lawsuit Over COVID-19 Response (July 2)

Oregon Public Broadcasting, Federal Lawsuit Calls Out COVID-19 Conditions at Sheridan Prison (June 30)

– Thomas L. Root

Coronavirus Simmers While BOP Gets Fried – Update for June 22, 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.

COVID-19 AIN’T GOIN’ AWAY

corona200313The New York Times reported last week that “cases of the coronavirus in prisons and jails across the United States have soared in recent weeks, even as the overall daily infection rate in the nation has remained relatively flat.” Certainly, the BOP’s own numbers suggest that little progress has been made in combatting COVID-19 in the BOP, and the stats contain an ominous sign.

Active inmate COVID-19 cases increased 9% to 1,351, but only one additional inmate death was recorded. What should worry the BOP, however, is a 9% increase in facilities reporting active coronavirus cases, from 64 to 70 prisons (well more than half of all BOP facilities). A month ago, the facilities count was 52. Two months ago, it was at 46.

The BOP reports that it has completed nearly 19,000 inmate COVID-19 tests, and one out of three inmates has tested positive. Yet the testing is a mere drop in the bucket: 86% of all federal inmates have yet to be tested.

coronadog200323

A June 18 Marshall Project/VICE News collaboration blasted the BOP’s management of the pandemic. Based on over 100 interviews and reviews of dozens of internal BOP memos, emails, and other documents, the story reported that

•   “staff ignored or minimized prisoners’ COVID-19 symptoms, and mixed the sick and healthy together in haphazard quarantines”;

•   thousands of prisoners being transferred around country in February and early March transmitted the pandemic from prison to prison, according to BOP records;

•   BOP staff felt pressured to report to work after being exposed to sick prisoners;

•  the BOP failed to follow its own pandemic response plan by spacing out prisoners;

•   the agency deliberately limited testing so that it would not have to report positive cases; and

•  prisoner quarantines were set up in “filthy buildings that had been vacant for years or in tents that flooded during rainstorms.”

BOPCOVID-19-200622The report said BOP Director Michael Carvajal refused an interview request, but a BOP spokesperson – while declining to comment on some of the allegations – maintained the agency’s response to the pandemic “was carefully planned and coordinated, and that it took an array of precautions to contain the outbreak.”

New York Times, Coronavirus Cases Rise Sharply in Prisons Even as They Plateau Nationwide (June 16, 2020)

ABC, More than 1 out of 3 tested federal inmates were positive for coronavirus (June 16)

The Marshall Project, “I Begged Them To Let Me Die”: How Federal Prisons Became Coronavirus Death Traps. (June 18)

– Thomas L. Root

No COVID-19 Curve Flattening in the BOP – Update for June 9, 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.

COVID-19 ROUNDUP

Talk about illness… Everyone’s sick to death about COVID-19 talk. But wishing it gone is a little bit different than having it gone. That’s somewhat the problem that the Federal Bureau of Prisons has with the coronavirus in general, and that BOP Director Michael Carvajal has with it in particular.

The BOP’s active coronavirus count jumped 23% this past week, from 1,710 sick inmates on June 1 to 2,109 yesterday. Staff infection ticked up from 171 to 185, and the number of BOP facilities reporting the virus jumped 7%, from 57 to 62. Cumulative inmate COVID-19 deaths increased last week from 70 to 81.

flatten200609The numbers keep ticking up, and – what’s worse – at the same pace. Nevertheless, when the Senate Judiciary Committee held a hearing a week ago today, Director Carvajal told the senators that “at this point, we have more recoveries than new infections. I believe that this shows that we are now flattening the curve.”

That’s not what flattening the curve means. “Flattening the curve” means to stagger the number of new infections over a longer period of time, although I suppose that eventually – when the BOP runs out of inmates yet to be infected – the curve will necessarily flatten when there’s no one left to get sick. But whatever else is happening, the BOP’s curve is not flattening.

Something else that’s not happening is a decrease in inmate class actions against the BOP. Those are proceeding apace around the country:

Massachusetts: A class of inmate plaintiffs who had conditions identified by the Centers for Disease Control and Prevention that heightened their risk for contracting COVID-19 or having a worse outcome from it (the “medically vulnerable”) sued the Federal Medical Center at Devens, Massachusetts, seeking proper and complete home confinement relief from the administration there. The Massachusetts federal district court denied the inmates an emergency injunction in May, but they asked for reconsideration last week. The court had denied the injunction in part because there had only been a single COVID-19 case at Devens when the injunction was denied. But since then, 24 inmates have been diagnosed as having the virus.

COVID joints200609

The injunction was also denied because the BOP had convinced the judge that it was “immediately reviewing all inmates who have COVID-19 risk factors… to determine which inmates are suitable for home confinement.” But then Devens’ warden, testifying in a different proceeding last month (one seeking compassionate release for an inmate), admitted that medical vulnerability to COVID-19 has not been considered a factor by the Devens front office in its compassionate release decisions, and that Devens refuses to transfer any prisoner to home confinement due to COVID-19, regardless of age or medical vulnerability, until the prisoner has served at least 50% of his sentence or at least 25% of his sentence with under 18 months left to serve.

The judge who originally heard the warden’s testimony in the compassionate release action found the policy to be “utterly inconsistent” with the Attorney General’s direction to maximize the use of home confinement as a tool to combat COVID-19, leaving “at-risk inmates who are not being individually assessed for release. And some of them may get very sick. Some of them may die.”

That reconsideration motion is pending.

Connecticut: In litigation over FCI Danbury, the judge has ordered the parties to give inmates a release form that would let the court release their presentence reports to the plaintiffs’ lawyers. The plaintiffs say access to the PSRs – which include a section on the defendants’ medical conditions – would help inmates vulnerable to the virus.

Inmate deaths200609

New York: U.S. District Judge Edgardo Ramos was preparing to rule on an inmate motion for injunction after a doctor tasked with inspecting MCC New York issued a scathing report proclaiming basic sanitation and virus screening failures. In a May 26 filing, Dr. Homer S. Venters criticized poor inmate screening and concluded that the prison has “ignored” signs that the virus may be widespread. Dr. Venters also reported a lack of access to basic sanitation, including soap. and he saw evidence that the facility is “widely infested with mice and roaches.”

Ohio: The FCI Elkton injunction came to a screeching halt after the BOP went back to the Supreme Court last week and this time convinced Associate Justice Sonia Sotomayor to grant its stay request. The Northern District of Ohio injunction issued by Judge James Gwin is now on hold, pending an appeal to the 6th Circuit Court.

North Carolina: An inmate suit over conditions at the several prisons making up the Butner Federal Correctional Complex, like the ones in Massachusetts, Ohio and Connecticut, seeks a court order that the Butner administration accelerate home confinement and compassionate release due to the rampant coronavirus at Butner (which has 571 active inmate cases and 18 deaths).

The BOP has moved to dismiss the suit, arguing that things are not as bad as the plaintiffs say they are because a lower percentage of infected inmates are dying than victims in the general public. Yesterday, the inmates replied,

More than 900 men incarcerated at Butner—almost 21 percent of Butner’s population—have tested positive for the virus that causes COVID-19. Nineteen people (including a BOP staff member) have died1—far more than at any other BOP facility. Half of those deaths happened in the 13 days since Petitioners filed this lawsuit. Infections and deaths are rapidly rising. The situation gets worse by the day.

Despite these harrowing and undisputed facts, Respondents contend that “FCC Butner’s efforts have been effective in managing infections and treating inmates.” Because they have purportedly taken some steps to mitigate the spread (however ineffective and late), Respondents argue their response to this deadly outbreak cannot possibly be deemed constitutionally defective. But that is not the law.

California: The inmates in a habeas corpus action against FCI Terminal Island and FCC Lompoc have asked the Central District of California federal court to order “a highly expedited process — for completion within no more than 48 hours — for BOP to use procedures available under the law to review members of the Class for enlargement of custody… in order to reduce the density of the prison population… and subsequently ordering the release of those granted temporary enlargement.” Separately, the complaint requests injunctive relief under the 8th Amendment to order improved conditions for all prisoners remaining at the institutions in the form of social distancing and provision of hygiene products.

(The May 10 spike represented the explosion of cases at FCI Terminal Island)
                         (The May 10 spike represented the explosion of cases at FCI Terminal Island)

The BOP has moved to dismiss the California suit for the same reasons it has raised elsewhere, that the court lacks the power to grant the asked-for relief and that the plaintiffs have not exhausted remedies. The court should decide the issue this week.

Grinis v. Spaulding, Case No 1:20cv10738 (D. Massachusetts)

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

Hallinan v. Scarantino, Case No 5:20hc2088 (Eastern District of North Carolina)

Wilson v. Williams, Case No 4:20cv794 (Northern District of Ohio)

Fernandez-Rodriguez v. Licon-Vitale, Case No 1:20-cv-03315 (Southern District of New York)

Wilson v. Ponce, Case No 2:20cv4451 (Central District of California)

– Thomas L. Root

‘Everything’s Great, Nothing to See Here, Folks,’ in BOP COVID-19 Response – Update for June 3, 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.

WHACK-A-MOLE

The BOP, in the new “normal” for COVID-19, is playing “whack-a-mole” with fresh coronavirus outbreaks at facilities that had been COVID-19 free a few weeks ago, as well as increasing illness numbers at institutions that had seemed to be on the mend, The number of inmate COVID-19 cases last night (1,954) is up about 8 percent from a week ago (1,813). Inmate deaths increased from 65 a week ago to 73. But ominously, the number of BOP facilities with COVID-19 cases hit 59 yesterday, an all-time high (and up from 53 a week ago).

whack200602

New COVID-19 breakouts were reported for FCI Talladega and FMC Devens, to note two facilities. Both had reported infections a month before but were later cleared.

Perhaps more ominous, an FCI Terminal Island inmate died last week after the BOP had earlier said the man had recovered from the illness. Adrian Solarzano tested positive for the virus on April 16 and was placed in isolation. The Los Angeles Times said the BOP deemed him “recovered” on May 10 after he no longer showed symptoms. But five days later — on May 15 — Solarzano was admitted to a hospital after complaining of chest pain and anxiety. He was tested twice for COVID-19, and authorities said both results were negative. But his condition worsened, and he was pronounced dead by hospital staff Sunday.

Meanwhile, the Anchorage Daily News reported that an Alaska man granted compassionate release from FCI Terminal Island, which still has 32 inmates and four staff ill, tested positive one day before his release. The BOP put him on a commercial flight to Anchorage, without ever telling him he had the virus.

fail200526The inmate’s lawyer says a chain of misfires allowed the BOP to swab the inmate for testing on May 5, get positive-for-the-virus lab results on May 7, and release him to fly home commercially on May 8. “There are so many institutional failures you can identify in this,” said Daniel Poulson, a federal public defender who represented the inmate on his compassionate release motion.

A class action lawsuit – looking a lot like successful suits brought in Connecticut about FCI Danbury and Ohio on FCI Elkton – was filed May 26 on behalf of the inmates at the several prisons that are part of the Butner, North Carolina, complex. The suit, Hallanan v. Scarantino, was brought by prisoners represented by the American Civil Liberties Union, the ACLU of North Carolina, the Washington Lawyers’ Committee for Civil Rights and Urban Affairs, and the law firm of Winston & Strawn.

The action seeks an injunction ordering Butner to release or transfer vulnerable prisoners, and alleges that Butner officials “have not taken the necessary steps to address the risk faced by the people in their custody. They have opposed motions for compassionate release, and they have failed to order furloughs or transfers to home confinement with sufficient speed and in sufficient numbers. They have failed to make other arrangements within the facility to allow for adequate physical distancing. And they have failed to implement effective isolation, quarantine, testing, screening, hygiene, and disinfecting policies or meaningfully modify movement protocols for staff and incarcerated people.”

Meanwhile, the Intercept reported last week that while BOP’s COVID-19 numbers included 230 halfway house residents at 42 RRCs, it “is clear is that the real number of residents with Covid-19 in federal halfway houses is higher than what appears on the BOP website.” The Crime Report reported that because some halfway houses receive a per diem rate based on the daily population at a given facility, the contractors “have an incentive to keep halfway houses as full as possible. Critics blame such financial incentives for a reluctance to send more people home during the pandemic.”

huckster200603But despite all of the foregoing, everything in the BOP is hunky-dory. Just ask BOP Director Michael Carvajal, who yesterday testified before the Senate Judiciary Committee that

In total, from March 1, 2020, the date of the beginning of the national emergency proclaimed by President Trump, until today, 5,323 inmates total have tested positive for COVID- 19 and to-date, 3,784 have recovered. More than 80 percent of infected individuals have not become significantly ill. The number of hospitalized inmates – those who became significantly ill – is currently only 83 in total. And in fact, the number hospitalized is on a significant downward trajectory (see attached), suggesting that our attempts to mitigate the transmission of the virus is effective.

(I added the bold-face for emphasis). The attached graph:

BOPgraph200603

But the fact that 80% of the inmates have not become significantly ill suggests very little (other than good fortune). More telling is that so far, only 10% of the inmate population has been tested for COVID-19.  At the same time, the number of BOP facilities at which the virus is present keeps climbing:BOPJointsCOVID200603

The only certainty is that while the BOP bungles at institutions like Oakdale, Elkton, Danbury, Butner, Fort Worth and Terminal Island go on, the Director and his PR machine will continue to publicly proclaim, “In response to the COVID-19 pandemic, the Bureau has taken, and will continue to take, aggressive steps to protect the safety and security of all staff and inmates, as well as members of the public.”

A parenthetic note: It is doubtful that the BOP’s Medical Director installed much confidence in the members of the Judiciary Committee at yesterday’s hearing. During his testimony, according to Associated Press reporter Mike Balsamo, he wore his face mask incorrectly:

BOPMeddir200603

Oops.

The Intercept, As Coronavirus Spreads in Federal Prisons, Cases in Halfway Houses are Being Undercounted (May 28)

The Crime Report, Halfway Houses Called Another Vector for Coronavirus (May 28)

Anchorage Daily News, He tested positive for the coronavirus. One day later, a federal prison flew him home to Alaska (May 26)

Huff Post, Inside A Federal Prison With A Deadly COVID-19 Outbreak, Compromised Men Beg For Help (May 26)

Hallanan v. Scarantino, Case No. 20-HC-2088 (E.D.N.C., filed May 26, 2020)

– 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.

compassion160124

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

BOP Misses a Base, and SCOTUS Calls the Agency Out – Update for May 27, 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.

BUT WAIT, THERE’S MORE…

More in the continuing saga of Judge James Gwin versus FCI Elkton – in which the Cleveland-based Federal Judge issued a preliminary injunction against the Federal Bureau of Prisons facility because the conditions of confinement of inmates especially vulnerable to COVID-19 was likely to constitute “deliberate indifference” (a term loaded with 8th Amendment implications)… and the BOP ran to the Supreme Court to complain about an (allegedly) out-of-control federal district court.

yerout200527Yesterday, the Supreme Court denied the BOP’s request that it stay the Judge’s injunction by a 6-3 vote. It reminded me of my Little League umpiring days… an exuberant base runner chugging around the diamond on his way to a home run misses touching second base by a foot or so. When he makes it to home, I have to call him out. A lot of parents boo.

Like that, the Supreme Court called the BOP out on an obvious blunder: the BOP effectively wanted a stay of last Tuesday’s District Court order that directed it to take specific steps to get Elkton inmates moving to home confinement. But the BOP did not seek a stay in the Court of Appeals first. Like base running, you can’t get away with crossing home plate if you don’t tag all of the preceding bases.

Practically speaking, the Supremes’ denial means that the District Court’s demand that the BOP actually address its disastrous management of COVID-19 at FCI Elkton may proceed unimpeded.

Last month, as I described at the time, Judge James Gwin of the U.S. District Court for the Northern District of Ohio granted a preliminary injunction ordering BOP officials at FCI Elkton (located about 70 miles southeast of Cleveland) to identify, and then to start transferring or releasing to home confinement medically vulnerable prisoners. The BOP promptly appealed this order to the U.S. Court of Appeals for the Sixth Circuit, but the Sixth bounced the appeal in a brief order finding that Judge Gwin had not abused his discretion.

slowroll200421After that (at least according to the plaintiffs and Judge Gwin) the BOP slow-walked the identification and transfer of vulnerable inmates. After all, judges retire, pandemics fade… if the agency could only do nothing long enough, the problem might take care of itself.

A week ago, Judge Gwin had had enough, and let the BOP know it. Finding that that BOP had not complied with his directive from last month to clear out Elkton in order to protect vulnerable people from the spread of coronavirus (which has already killed nine Elkton inmates and 64 federal inmates nationally), the Judge said the BOP had “made only minimal effort to get at-risk inmates out of harm’s way.” As of May 8, 2020, five subclass members were “pending [home confinement] community placement. Six inmates were identified as maybe qualifying for home confinement. No inmates were deemed eligible for furlough transfer. But to date, Respondents have not identified any inmates whose confinement has actually been enlarged as a consequence of the preliminary injunction.”

The Judge ordered the BOP to loosen requirements on who qualifies for placement on home confinement under the Bureau’s CARES Act authority by

• eliminating requirements about length of his or her sentence an inmate has served (reversing the BOP’s position that an inmate had to have served 50% of his or her entire sentence, or 25% and have less than 18 months to go, in order to be eligible);

• disregarding whether they committed had certain low or moderate offenses within the past 12 months (reversing the BOP’s position that any disciplinary report in the past 12 months – from possessing a shank or taking an apple from the chow hall to eat later) – was automatically disqualifying);

• eliminating a BOP requirement that the inmate be a U.S. citizen in order to get CARES Act home confinement placement;

• eliminating the requirement that an inmate with a “low” PATTERN risk score be denied CARES Act home confinement placement; and

• disregarding the fact that an inmate is serving time for a “violent” crime (and “violence” is being defined more broadly by the BOP than by any other government agency interpreting federal law) if the crime occurred more than five years ago.

The Court instructed the BOP to explain in detail to the court why any inmate was denied CARES Act placement or Bureau recommendation for compassionate release furloughed or moved to another facility, the prisons bureau must also explain why.

The judge’s order observed that “[b]y thumbing their nose at their authority to authorize home confinement, Respondents threaten staff and they threaten low security inmates.”

Calvin thumb on nosePreviously, the BOP had tried without success to get the Sixth Circuit to stay the injunction. After last week’s order from the Judge spelling out what Elkton was to do right away, the BOP an application for a Supreme Court stay of Judge Gwin’s preliminary injunction “pending appeal of that injunction to the United States Court of Appeals for the Sixth Circuit and, if the court of appeals affirms the injunction, pending the filing and disposition of a petition for a writ of certiorari and any further proceedings in this Court.”

The problem with the BOP’s Supreme Court filing was evident from the get-go. Although it claimed to be seeking a stay of the April injunction, the BOP spent much of its brief complaining about last Tuesday’s order. As the inmate plaintiffs cheerfully pointed out in their response filed last Friday, the BOP had never asked the Sixth Circuit to review last week’s order, and jumping the appeals court to straight to SCOTUS is not allowed.

Yesterday, the Supremes agreed, but with a caveat:

[O]n May 19, the District Court issued a new order enforcing the preliminary injunction and imposing additional measures. The Government has not sought review of or a stay of the May 19 order in the U.S. Court of Appeals for the Sixth Circuit. Particularly in light of that procedural posture, the Court declines to stay the District Court’s April 22 preliminary injunction without prejudice to the Government seeking a new stay if circumstances warrant.

The Care Bears did not mean the Court cared much for the BOP's application for stay...
          The Care Bears did not mean the Court cared much for the BOP’s application for stay…

The Court seemed to be leaving the door open a crack, inviting the BOP to come back if it was unsuccessful in getting the Court of Appeals to stay the latest order.

Justices Thomas, Alito and Gorsuch voted to grant the stay, meaning that Chief Justice Roberts, Kavanaugh, Breyer, Ginsburg, Kagan and Sotomayor were in the majority, denying the stay.

Williams v. Wilson, Case No. 19A-1041, 2020 U.S. LEXIS 2951 (Supreme Court, May 26, 2020)

– Thomas L. Root

Starting Phase Seven (Because the First Six Have Worked So Well) – Update for May 26, 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.

TIME FOR PHASE SEVEN…

The BOP launched Phase Seven of its COVID-19 Action Plan last week, announcing (among other things) that it will begin moving about 6,800 inmates who have been waiting in local detention centers across the U.S. to federal prisons to avoid further jail overcrowding.

fail200526 And why not? When Phase Five began on April 2, the BOP had 75 sick inmates, 39 sick staff and two inmate deaths from COVID-19. That was over 3,000 COVID-19 cases ago. With a record of success like that, the BOP really ought to stick with a winner, and implement Phase Seven.

BOP Director Michael Carvajal told BOP staff in his weekly video message that the BOP will set up three designated testing and quarantine sites, at FTC Oklahoma City, FCC Yazoo City and FCC Victorville. The transferees will be tested for COVID-19 when they arrive at the quarantine site facility and again when they are transferred to their designation institution.

No plans have been announced for mass testing of people currently in BOP facilities, although groups as diverse as the ACLU and the Council of Prison Locals (representing 30,000 BOP employees,  earlier this month called for universal testing in all prisons.

crazynumbers200519The number of inmate COVID-19 cases reported by the BOP dropped throughout the past week from 2,402 to 1,603, but the staff COVID-19 case numbers have remained stubbornly above 175. Likewise, the number of institutions with active COVID-19 cases has remained above 50. Three more inmates died last week, bringing the total dead to 60. More ominously, at least two facilities that had reported COVID-19 inmate cases but were later declared to be coronavirus-free are back on the list: FCI Talladega reports one inmate and one staff member with the illness, and FMC Devens- with no cases just two weeks ago – reports 24 inmates and two staff sick with the virus.

The real problem with the BOP numbers is that no one really believes them. Reuters reported last week that while a May 6 report by the Centers for Disease Control and Prevention that surveyed local, state and federal prisons for COVID-19 reported 5,000 inmate cases. Reuters performed its own data analysis, and found about 17,300, over three times CDC’s tally.

The infectious disease experts who filed the Supreme Court amicus brief in the FCI Elkton case noted that “over 3,000 confirmed cases of coronavirus have emerged in BOP’s federal correctional facilities. Given the dearth of testing, these numbers likely dramatically understate the problem.”

gtfo200526Incidentally, at the facility that started it all for the BOP, FCC Oakdale, has resumed universal testing of inmates. Also, last Friday, USA Today reported that the BOP reassigned Oakdale warden Rodney Myers to “temporary duty” at the BOP South Central Regional Office.

Although the BOP did not elaborate on the reason for the move, Ronald Morris, president of the local union representing the corrections workers, told the Wall Street Journal last Friday, “Warden Myers’s continued negligence and endangering of staff and inmates was creating a more difficult situation to control the spread of Covid-19.”

USA Today said that Myers did not immediately respond to requests for comment.

Reuters, Across U.S., COVID-19 takes a hidden toll behind bars (May 18)

USA Today, Feds reassign warden at Louisiana prison hit hard by coronavirus (May 22)

Wall Street Journal, Warden at Prison Besieged by Coronavirus Is Reassigned (May 22)

KDBC-TV, El Paso, Texas, Federal prison system to begin moving nearly 7K inmates (May 22)

– Thomas L. Root

The World Turned Upside Down – Update for May 21, 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 SCURRIES TO SUPREME COURT IN BID TO STOP DISTRICT COURT ORDER TO PROTECT VULNERABLE INMATES

Now for the continuing saga of Judge Gwin versus FCI Elkton – in which the Cleveland-based federal judge issued a preliminary injunction against the Federal Bureau of Prisons facility because the conditions of confinement of inmates especially vulnerable to COVID-19 was likely to constitute “deliberate indifference” (a term loaded with 8th Amendment implications)… as the BOP runs to the Supreme Court to complain about an (allegedly) out-of-control federal district court.

bartleby200521Last month, as we described at the time, Judge James Gwin of the U.S. District Court for the Northern District of Ohio granted a preliminary injunction ordering BOP officials at FCI Elkton (located about 70 miles southeast of Cleveland) to identify, and then to start transferring or releasing to home confinement medically vulnerable prisoners. The BOP promptly appealed this order to the U.S. Court of Appeals for the Sixth Circuit, but the Sixth bounced the appeal in a brief order finding that Judge Gwin had not abused his discretion.

Bartleby the Scrivener has nothing on the BOP. Having lost its interlocutory attempt to force the inmate plaintiffs into interminable trench warfare over their habeas corpus action – and thus let time and inmate attrition take care of Elkton’s coronavirus outbreak – the BOP simply chose to ignore the Judge’s injunction. Last Tuesday, an apparently fed-up Judge Gwin let the BOP know who in the case had a robe and gavel, and who did not.

On Tuesday, the Court ruled that BOP officials had not complied with his directive from last month to clear out Elkton to address the spread of coronavirus, which has already killed nine Elkton inmates (out of 58 federal inmates nationally) and infected over 100 others. The Judge noted that of 837 inmates identified as medically vulnerable to COVID-19, the BOP had “made only minimal effort to get at-risk inmates out of harm’s way. As of May 8, 2020, five subclass members were “pending [home confinement] community placement.” Six inmates were identified as maybe qualifying for home confinement. No inmates were deemed eligible for furlough transfer. But to date, Respondents have not identified any inmates whose confinement has actually been enlarged as a consequence of the preliminary injunction.”

Charitably characterizing the BOP’s efforts to date as “limited,” Judge Gwin ordered the BOP to loosen requirements on who qualifies for placement on home confinement under the Bureau’s CARES Act authority by

• eliminating requirements about length of his or her sentence an inmate has served (reversing the BOP’s position that an inmate had to have served 50% of his or her entire sentence, or 25% and have less than 18 months to go, in order to be eligible);

• disregarding whether they committed had certain low or moderate offenses within the past 12 months (reversing the BOP’s position that any disciplinary report in the past 12 months – from possessing a shank or taking an apple from the chow hall to eat later) – was automatically disqualifying);

• eliminating a BOP requirement that the inmate be a U.S. citizen in order to get CARES Act home confinement placement;

• eliminating the requirement that an inmate with a “low” PATTERN risk score be denied CARES Act home confinement placement; and

• disregarding the fact that an inmate is serving time for a “violent” crime (and “violence” is being defined more broadly by the BOP than by any other government agency interpreting federal law) if the crime occurred more than five years ago.

The judge instructed the BOP to explain in detail to the court why any inmate was denied CARES Act placement or Bureau recommendation for compassionate release furloughed or moved to another facility, the prisons bureau must also explain why.

Calvin thumb on noseThe judge’s order observed that “[b]y thumbing their nose at their authority to authorize home confinement, Respondents threaten staff and they threaten low security inmates.”

But the BOP immediately struck back. Late yesterday, the BOP filed an application for a Supreme Court stay of Judge Gwin’s preliminary injunction “pending appeal of that injunction to the United States Court of Appeals for the Sixth Circuit and, if the court of appeals affirms the injunction, pending the filing and disposition of a petition for a writ of certiorari and any further proceedings in this Court.”

donothing200521

After the predictable self-serving explanations to the Supreme Court that “the Federal Bureau of Prisons (BOP) is working assiduously to mitigate those risks within its facilities by implementing a multi-phase plan it developed in January 2020,” the application for stay complains that “the district court’s injunction — now augmented by the court’s sweeping May 19 order — would undermine BOP’s systemic response to the COVID-19 pandemic; intrude the Judicial Branch on policy decisions that have been assigned to expert prison administrators; and require BOP to defy the CDC’s guidance to restrict prisoner movements during the pandemic to avoid unnecessary risk of spreading the virus.”

Justice Sonia Sotomayor, who is assigned as Circuit Justice for the Sixth Circuit, has ordered the inmate petitioners to file a response by tomorrow morning.

Order, Dkt. 85, Wilson v. Williams, Case No. 4:20cv00794 (N.D. Ohio, issued May 19, 2020)

Application for a Stay of the Injunction Issued by the United States District Court for the Northern District of Ohio and for an Administrative Stay, Williams v. Wilson, Case No. 19A-____ (Supreme Court, May 20, 2020)

– 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