Tag Archives: covid-19

Biden Says Trump Got It Right on CARES Act Home Confinees Going Back to Prison – Update for July 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.

BIDEN DOJ AGREES CARES ACT REQUIRES HOME CONFINEES TO RETURN TO PRISON, BUT ALL IS NOT LOST

comeback201019In a dying gasp last January, Donald Trump’s Dept of Justice Office of Legal Counsel interpreted § 12003 of the CARES Act to mean that anyone sent to home confinement during COVID-19 had to return to prison a month after the official state of emergency for the pandemic ends, according to officials.

Since taking office, President Biden’s administration has come under pressure from FAMM, other activists, and lawmakers – including Senate Judiciary Committee Richard Durbin (D-Illinois) and Sen Charles Grassley (R-Iowa) – to revoke the memo. But last week, The New York Times reported the Biden DOJ has concluded that the January memo correctly interpreted the law.

The COVID state of emergency is not expected to end this year, in part because of the rise of the Delta variant. “But the determination means that whenever it does end,” The Times said, “the department’s hands will be tied.”

The Times said several Administration officials “characterized the decision as an assessment of the best interpretation of the law, not a matter of policy preference.” But that didn’t slow the barrage of criticism.

backstab160404“We took President Biden at his word that he wanted to reduce mass incarceration, but this choice, to send thousands back to prison, would be doubling down on the worst parts of his legacy,” Holly Harris, president of Justice Action Network, said. “It’s time for President Biden to keep his promise, and keep these people home.” The Hill complained that “Biden and Attorney General Merrick Garland could have rescinded that policy.” Lauren-Brooke Eisen, director in the Brennan Center’s Justice Program, said, “No public interest is served in having this group of individuals reincarcerated.”

The Justice Action Network and the Brennan Center both noted that Biden campaigned heavily on criminal justice reform last year.

“On the campaign trail, President Biden vowed to take bold action to reduce our prison population, create a more just society, and make our communities safe. He said he believed in offering second chances,” Eisen said.

Forbes said, “The position of both administrations seems odd when the program has been such a success… Of the 20,000 on home detention (CARES Act plus those on home confinement because they were near the end of their prison term) there had only been 20 individuals returned to prison institutions as a result of violations. That’s a 99.9% success rate.”

interpretation210729I think the critics are missing the point. The fact that the Biden DOJ thinks the prior OLC legal analysis of the CARES Act is solid has no effect on what policy the Administration will follow. If anything, the criticism Biden is taking over last week’s Times story makes it more likely than not that Biden or Congress will find some means of keeping CARES Act people on home confinement.

The New York Times, Biden Legal Team Decides Inmates Must Return to Prison After Covid Emergency (July 19, 2021)

The Hill, Biden administration criticized over report that it is not extending home confinement for prisoners (July 20, 2021)

Forbes, Biden Administration Signals That Federal Inmates On Home Detention Will Return To Prison (July 20, 2021)

The Crime Report, Prisoners Freed During COVID are ‘Twisting in the Wind,’ say Reformers (July 23, 2021)

– Thomas L. Root

No Vax, No Love, 7th Circuit Says – Update for July 27, 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.

ANTI-VAXXERS GET NO COMPASSION, 7TH CIRCUIT SAYS

District Courts have been struggling with what to do with prisoners seeking compassionate release under 18 USC § 3582(c)(1)(A)(i) because of COVID-19, now that vaccines are generally available. You might think all of this is akin to perfecting buggy whips, what with the COVID pandemic over with, but the virus has a way of sticking around like that dinner-party guest who just won’t leave.

antivax210727The BOP numbers of sick inmates are climbing again, with 214 sick as of last night. More ominous: three weeks ago, the number of BOP institutions with COVID present had fallen to a 13-month low of 64. As of last night, it had shot up to 84. Something tells me COVID behind the fence is soon to become an issue again.

Other numbers you should know: 53.9% of federal prisoners had been vaccinated. A good number of those who have not taken the vaccine still have § 3582(c)(1)(A)(i) compassionate release motions pending. Last week, the 7th Circuit warned them that they may have nothing coming.

Brian Broadfield filed a compassionate release motion, claiming his medical conditions made him susceptible to COVID-19. His district court denied him, finding that a prior weapons conviction made him a danger to the community. That was error: Brian had no prior weapons conviction. But when he appealed, and asked the 7th Circuit to remand the case, the appeals court declined.

“A remand would be appropriate only if reconsideration could produce a decision in Broadfield’s favor,” the 7th said, “and it could not. When Broadfield filed his application for compassionate release, and when the district judge denied it, COVID-19 was a grave problem in America’s prisons, where people cannot engage in social distancing. Today, however, effective vaccines are available.”

Brian said he had refused to get vaccinated because he feared an allergic reaction, but he did not show he had ever had such a reaction before. Even if he had, the Circuit said, “the policy statement provides that prisoners with a history of allergic reactions to vaccines will receive extra evaluation before vaccination and additional observation afterward.”

coffee210521(An aside: That policy and $3.75 will get you a Starbucks frappe menu. Dr. Homer Venters – an epidemiologist who, among other positions, has been designated by the U.S. District Court for the Central District of California to inspect FCI Lompoc – reported to that Court that

[i]t is apparent that BOP has performed well in their efforts to secure, distribute and offer COVID-19 vaccine, a significant accomplishment… there appears little effort focused on engaging staff and incarcerated people about their questions or concerns regarding the vaccine. In speaking with the leadership, it was clear that they view the periodic, mass offering of the vaccine as more than adequate. They reported no efforts to identify and follow up with high-risk patients who refused vaccination, and stated several times that because those people would be re-offered again at a later time, in the same manner as before, that the process was adequate. This is consistent with the reports of patients themselves, many of whom reported that despite having questions about the vaccine and their own health issues, these questions were not addressed during the vaccine offer or afterwards. The CDC has entire toolkits and guidance documents designed to increase vaccine update, but the basic foundation of these efforts is engaging with patients; ‘By taking time to listen to their concerns and answer their questions, we can help people become confident in their decision to be vaccinated.’ The approach of BOP Lompoc not only fails to engage with patients, it has a paradoxical effect of creating a pool of extremely high-risk unvaccinated patients. Many of these high-risk patients were initially offered the vaccine 3 or 4 months ago, and the insistence by BOP leadership that their very valid and predictable questions and concerns go unaddressed during this time significantly increases the risk of preventable death from COVID-19.

[Note: Hyperlink to CDC guidance not in Dr. Venters’ statement – I added it]. In other words, any prisoner with questions about the vaccine had better not hope for any wise counsel from the quackery that is BOP Health Services. End of aside.)

sthup210727The 7th concerned itself only with the policy statement, not with its execution. It ruled that “for the many prisoners who seek release based on the special risks created by COVID-19 for people living in close quarters, vaccines offer relief far more effective than a judicial order. A prisoner who can show that he is unable to receive or benefit from a vaccine still may turn to this statute, but, for the vast majority of prisoners, the availability of a vaccine makes it impossible to conclude that the risk of COVID-19 is an ‘extraordinary and compelling’ reason for immediate release.”

Ohio State law professor Doug Berman said in his Sentencing Law and Policy blog, “Critically, by using the phrase “the vast majority of prisoners,” this final sentence still suggests that, at least for a few prisoners, the risk of COVID-19 can still provide an “extraordinary and compelling” reason for compassionate release. Even more important may be whether lower courts might read this paragraph to mean that COVID risks cannot be combined with other factors to make out extraordinary and compelling reasons. Even if COVID risks are low for the vaccinated, they are not zero and so should be, as I see it, still a potential contributor to assessing what qualifies as an extraordinary and compelling reason when combined with other factors.”

United States v, Broadfield, Case No 20-2906, 2021 US App LEXIS 21580 (7th Cir. July 21, 2021)

Second Report of Dr. Homer Venters, ECF 239, filed May 12, 2021, in Torres v. Milusnic, Case No. 20-cv-4450 (C.D.Cal.)

Santa Barbara Independent, Doctor ‘Extremely Concerned’ About Low Vaccination Rate Among Lompoc Prisoners (, May 20, 2021)

Bureau of Prisons, COVID-19 Vaccine Guidance: Federal Bureau of Prisons Clinical Guidance (Jan. 22, 2021)

Sentencing Law and Policy,  Seventh Circuit panel states (in dicta?) that vaccine availability “makes it impossible” for COVID risks to create eligibility for compassionate release (July 22, 2021)

– Thomas L. Root

The Big Payoff at BOP – Update for May 18, 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.

SEX ABUSE AND MORONS

payoff210518Fourteen female prisoners who alleged in a lawsuit two years ago that they were sexually abused by officers at the Federal Correctional Complex Coleman women’s camp have settled with the government.

The Attorney General has approved the settlement, but the funds have not yet been released. An attorney for one of the women said he could not discuss the amount of the settlement until the money is released. Another lawyer, however, told the Tampa Bay Times (which first reported the settlement) that his three clients will share $1.26 million.

The suit contended that Bureau of Prisons correctional officers Coleman sexually abused female inmates for years and threatened the women if they didn’t comply. The women said they feared that if they came forward they’d be sent to another prison far from their families, interrupting the education and work programs they had at Coleman. The COs, who were identified by name in the litigation, have all retired or resigned, and some with full benefits from the bureau, according to the suit. None has faced any criminal charges.

It may be tougher for female inmates than for male ones, as the BOP’s cave-in on this suit suggests.

And not just for female inmates. A few years ago, 524 female BOP employees received a $20 million settlement of a suit that alleged Coleman management didn’t protect them from sexual harassment by male inmates and dissuaded the employees from documenting their complaints.

suit201102Meanwhile, for the second time in recent weeks, a lawsuit was filed in Kentucky accusing a Lexington Federal Medical Center employee of raping an inmate at the women’s minimum-security camp. A prior suit alleged that a CO raped a female inmate, according to court records. The new filing accuses an instructor in the RDAP program (who is no longer a BOP employee) of raping a different female inmate.

RDAP,  the intensive Residential Drug Abuse Program, rewards inmates who successfully complete the 9-12 month regimen with up to one year off their sentences. An instructor, whose decision could eject an inmate from RDAP and thereby deprive her of the year off, would have substantial leverage over an inmate in the program.

The BOP told the Herald-Leader it does not comment on pending litigation. One of the attorneys representing the two women, said, “Sexual misconduct in our nation’s prisons is not limited to one bad actor or one specific facility… We intend to hold these bad actors responsible for the harm they have caused.”

On a different topic, a week ago I reported on newspaper reports on the condition of MCC New York and MDC Brooklyn. Last week, the New York Daily News reported that BOP “brass visited New York City’s federal jails last weekend — one day after the Daily News highlighted a judge’s scathing comments that the lockups were “run by morons.”

“The same day the BOP learned of the recent commentary about the conditions at MCC New York and MDC Brooklyn, staff were sent from agency headquarters and its Northeast Regional Office to review and ensure conditions for safety and security are maintained,” a BOP spokeswoman told the paper.

Apparently, the facilities had a bit of notice on the inspection. An MCC inmate told The News “that orderlies worked to clean up the jail until 3 a.m. on Saturday, hours before the BOP officials arrived. Correctional staff told detainees the visit was due to the jail being ‘in the newspaper,’ according to the inmate who is not allowed to speak to the press. Correctional officers brushed off McMahon’s comments, saying they were directed at captains and wardens, the inmate said.”

potemkin210518Potemkin would have been proud. But probably not so the MDC and MCC managers, who are guilty of the cardinal bureaucratic sin: they made their bosses look bad, something that is not easily forgiven.

Other sources told the paper that “inmates were being shuffled to different units and transferred to MDC for repairs at MCC.”

Finally, the numbers: As of Friday, the BOP said it had 73 inmates and 153 staff with COVID. The percentage of vaccinated staff stood at 50.4%, inmates at 40.5%. One more death, a USP Yazoo City inmate, raised the federal inmate death toll to 250.

Miami Herald, Feds pay seven figures to settle suit over systemic sexual abuse at Florida women’s prison (May 13, 2021)

Tampa Bay Times, Lawsuit settled in which 15 women alleged sexual abuse at Florida prison (May 6, 2021)

Lexington Herald-Leader, Second Lexington FMC inmate files lawsuit accusing prison employee of rape (May 15, 2021)

New York Daily News, NYC federal jails visited by Bureau of Prisons bigwigs after judge’s criticism (May 14, 2010)

BOP, Inmate Death at USP Yazoo City (May 13, 2021)

– Thomas L. Root

Who Ya Gonna Believe, Science or the US Attorney? – Update for April 15, 2021

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

COVID IS LOVELIER, THE SECOND TIME AROUND…

ipsedix210415The value of government blandishments has dropped substantially over the past few days, as prior assurances about the safety of the Johnson & Johnson vaccine morphed into a “pause” because some recipients were in the ICU with clotting blood. As one inmate, who watched a third of his unit get the J&J shot the day before the “pause,” told me, “I think this is the nail in the coffin for J&J, not many inmates will take it anymore here from the sound of it.”

I’m not judging J&J, which may or may not have triggered a severe reaction in two out of a million users. But the government’s willingness to speak with authority when it has no basis for the assertion is not an uncommon phenomenon. Take the U.S. Attorney in any of the 94-odd federal districts making up this great nation.

More than one federal prisoner who has already had COVID (and there are a lot of them) has moved for 18 USC § 3582(c)(1)(A)(i) compassionate release. In many cases, prisoners have filed for compassionate release and then gotten COVID while waiting for the judge to act.  For inmates whose compassionate release motions were not decided at the time they got sick, the government likes to argue that they are immune, or at least that if they get it again, their case would be no worse than the first time around.

ipsed210415Last week, a district court rejected the government’s evidence-free ipse dixit (a gift to posterity from Marcus Tullius Cicero which means, essentially, that “it’s so because I said it’s so”), and accepted an inmate’s expert opinion to the contrary.

Justin Groat filed for compassionate release. He had already had COVID-19, but he had a laundry list of comorbidities that could have made things worse, and would not help matters if he caught it again. The government argued he was immune, and he would be fine (without, of course, citing any basis for its claim, a classic ipse dixit.

But Justin responded that a number of district court decisions had held  a previous positive Covid-19 diagnosis does not block grant of a compassionate release motion  “if compelling and extraordinary reasons justify a reduced sentence.” He also a medical school professor’s opinion that “immunity seems to last approximately 90 days and that ‘reinfection with Covid-19 has been documented, with some individuals presenting with more severe disease than the first infection.”

AUSAignorance210415

The district court granted compassionate release, finding Justin’s evidence “persuasive” that COVID immunity only lasted about 90 days. “The Government has only offered the opinion of its counsel that Mr. Groat’s prior infection suggested he was safe as “amount[ing] to nothing more than impermissible ipse dixit… Because Mr. Groat is currently unvaccinated, exposed to many other inmates who are similarly unvaccinated, being guarded by substantial percentage of staff who (according to defense counsel) have also not been vaccinated, and because it is likely that he is capable of being reinfected, the court finds that Mr. Groat is at risk of being infected with Covid-19.”

Incidentally, over half of the BOP’s workforce has refused vaccination.

United States v. Groat, Case No 2:17cr104, 2021 U.S. Dist. LEXIS 65194 (D.Utah Apr 2, 2021)

– Thomas L. Root

BOP Cooks Books, Congress Stirs Pot – Update for April 6, 2021

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

BOP COOKING THE COVID BOOKS, ACLU SAYS

White-collar crime inmates could learn something about slick accounting from the BOP.

cookbooks210406Up until five weeks ago, the BOP reported the total number of inmates who had tested positive for COVID-19, adding to the tally daily as new cases arose. As I reported last week, since February 24, the BOP has been changing the number daily by not just adding new cases, but by subtracting inmates who had tested positive in the past but who were no longer in custody. This accounting legerdemain has let the BOP understate the number of inmate cases by at least 1,115 through the end of March, which has reduced the positivity rate by a point, from 43.77% (had those inmates remained on the rolls) to 42.75% without them.

The Marshall Project reported the trickery last week, noting its weekly COVID prison “data no longer includes new cases from the Federal Bureau of Prisons, which has had more prisoners infected than any other system. In early March, the bureau’s totals began to drop because they removed cases of anyone who was released, a spokesman said. As a result, we cannot accurately determine new infections in federal prisons.”

The ACLU and other prison watchdog groups contend the BOP’s testing procedures are inadequate. According to the Riverfront Times, Sharon Dolovich, the director of the UCLA Law COVID-19 Behind Bars Data Project, said, “We know that those are under-counts because there are many facilities that are reporting zero, or under ten or under twenty infections,” Dolovich says. “And both because of what we know from COVID, and from what we’ve seen in countless facilities a year into the pandemic, we know that if you’re a prison with twenty infections, you have many more than twenty people who are infected.”

Maria Morris, director of the ACLU’s National Prison Project, said that BOP officials are motivated to under-test and therefore to under-count infections. “And then they can say COVID isn’t a problem in our facilities. ‘Look at how low our numbers are,'” she told the Riverfront Times.

A BOP spokesperson responded that BOP employees work closely with local health departments to ensure priority testing is provided to staff who are in close contact with COVID-19-positive personnel, while the federal prison agency has obtained a national contract to perform all staff testing.

battleplan210406“Whatever policies they have on paper aren’t actually being implemented,” Dolovich replied. “So they could tell you things that actually sound good in theory. But when you actually talk to people incarcerated in the various facilities, they will tell you that the reality is very different.”

Even before the BOP’s latest numbers game, Senators Elizabeth Warren (D-Massachusetts) and Cory Booker (D-New Jersey) reintroduced the Federal Correctional Facilities COVID-19 Response Act (S.328 in the Senate) to address inadequacies in the BOP’s COVID response.

The legislation would require correctional facilities to begin providing free, weekly COVID-19 testing and vaccines to both the incarcerated and their employees and assure that they offer free medical care to those who test positive for it. Oversight would include requiring these facilities to submit weekly testing data to the Department of Justice, the Centers for Disease Control and Prevention (CDC), and state public health officials. CDC officials would be dispatched to sites where outbreaks emerged within 72 hours.

BOPCOVID-19-200622“The Department of Justice’s response to the COVID-19 pandemic has been unacceptable and has placed nearly 2.3 million incarcerated people in danger,” Booker said. “It is well known that people in prison and jail tend to have much higher rates of underlying health issues than the general public, and the conditions of confinement make social distancing virtually impossible. As a result, people in prison and jail are disproportionately contracting and dying of COVID-19.”

The BOP ended yesterday claiming only 371 sick inmates. The number of sick staff, however, remains stubbornly at about where it was a week before, 1,268. COVID is still present in 116 facilities. While the BOP claims generally to have delivered 110,489 shots in arms, its detailed listing as of last Friday reveals only 19.2% of the inmate population has been vaccinated.

The Marshall Project, A State-by-State Look at Coronavirus in Prisons (April 2, 2021)

The Riverfront Times, Why Did a St. Louis Man Die in a Federal Prison Coronavirus Hotspot? (March 24, 2021)

Homeland Preparedness News, Legislation to provide greater oversight of federal prisons’ COVID-19 efforts reintroduced to Congress (April 5, 2021)

S.328, Federal Correctional Facilities COVID–19 Response Act 

– Thomas L. Root

10th Circuit Greenlights Compassionate Release for Over-Long Sentences – Update for April 5, 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.

PEELING THE COMPASSIONATE RELEASE ONION

peelingOnion210405A trio of appellate decisions last week – two from the 10th and one from the 4th – continue to peel away the uncertainty from the scope of 18 USC § 3582(c)(1)(A)(i) sentence reduction and the factors relevant to whether a reduction will be granted or denied.

You recall that 18 USC § 3582(c)(1)(A)(i) permits the district court that sentenced a defendant to reduce the sentence at any time if the defendant can show “extraordinary and compelling” reasons for doing so, if the reduction is consistent with Sentencing Commission policy statements, and if the reduction is not too much of an affront to the factors listed in 18 USC § 3553(a) that a court is to consider at sentencing.

First, the 10th Circuit joined the 4th in holding that district courts are entitled to broadly interpret “extraordinary and compelling” reasons for granting compassionate release. In two decisions, the 10th reversed district court holdings that the fact Congress had not made First Step Act drug and § 924(c) sentencing changes retroactive does not mean that those changes cannot figure in a compassionate release motion.

Malcom McGee was sentenced to mandatory life back in 2000 for a drug trafficking offense, the stratospheric minimum sentence because he had prior state convictions for drug use and sale. Section 401 of the First Step Act cut the mandatory life minimum in 21 USC § 841(b)(1)(A) to 25 years, but Congress decided against making the change retroactive (a sop Senate Majority Mitch McConnell (R-Kentucky) threw Sens Ted Cruz (R-Texas), Tom Cotton (R-Klingon Empire) and their fellow troglodytes who thought there was nothing wrong with forcing someone sentenced on December 20, 2018, to get life while someone being sentenced two days later to get 25 years).

klingons210405Because First Step did not make the mandatory minimum change retroactive, Malcom found himself in the middle: Congress didn’t cut him a break, and the district court said it could not use compassionate release to grant him a sentence reduction because of Congress’s refusal to apply retroactivity.

The 10th Circuit disagreed:

“The plain text of § 401(c) of the First Step Act makes clear that Congress chose not to afford relief to all defendants who, prior to the First Step Act, were sentenced to mandatory life imprisonment under § 841(b)(1)(A). But nothing in § 401(c) or any other part of the First Step Act indicates that Congress intended to prohibit district courts, on an individualized, case-by-case basis, from granting sentence reductions under § 3582(c)(1)(A)(i) to some of those defendants…The possibility of a district court finding the existence of “extraordinary and compelling reasons” based, in part, on a defendant’s pre-First Step Act mandatory life sentence under § 841(b)(1)(A) does not, in our view, necessarily usurp Congressional power.”

Two days later, the 10th Circuit shut down government arguments in another compassionate release case. Kepa Maumau was convicted of three stacked § 924(c) convictions, receiving a 55-year sentence. The district court granted him compassionate release based on the First Step Act’s change of § 924(c) which was to not impose the 25-year sentence for a subsequent § 924(c) conviction unless the defendant had already been convicted of a prior one. The court also considered Kepa’s youth at the time he committed the crimes and his rehabilitation in prison.

But Kepa stayed in prison because the government appealed, arguing that the U.S. Sentencing Commission alone, not the courts, has power to determine what constitutes an extraordinary and compelling reason for compassionate release. What’s more, the government complained, a district court has no authority to grant compassionate release based on its disagreement with the length of a mandatory sentence.

Sentencestack170404The Circuit bluntly rejected these arguments, holding that the government’s “underlying premise is incorrect. Nothing in the district court’s decision indicates that the district court granted relief to Maumau based upon its general disagreement with the mandatory sentences that are required to be imposed in connection with § 924(c) convictions. Nor was the district court’s decision based solely upon its disagreement with the length of Maumau’s sentence in particular. Rather, the district court’s decision indicates that its finding of “extraordinary and compelling reasons” was based on its individualized review of all the circumstances of Maumau’s case and its conclusion “that a combination of factors” warranted relief, including: “Maumau’s young age at the time of” sentencing; the “incredible” length of his stacked mandatory sentences under § 924(c); the First Step Act’s elimination of sentence-stacking under § 924(c); and the fact that Maumau, “if sentenced today… would not be subject to such a long term of imprisonment.”

Kepa went home last Friday.

Finally, the 4th Circuit handed Ryan Kibble a loss, but in an opinion interesting for its concurring opinion discussing § 3553 factors. Ryan was locked up at FCI Elkton, a notorious BOP COVID-19 hotbed, for 87 months after a conviction for soliciting sex from a female cop (whom Ryan thought was a 14-year old girl).

One of the sentencing factors set out in § 3553(a) is that the sentence be “just punishment” for the offense. District courts have grappled with § 3582(c)(1)(A)’s directive that they “consider[]” the § 3553(a) factors, and more than one has said it already applied the factors at sentencing, and it would stand on its previous position.

lockdowncovid210405But “[s]ection 3582(c)(1) necessarily envisions that the § 3553(a) factors may balance differently upon a motion for compassionate release than they did at the initial sentencing,” Chief Judge Roger Gregory wrote in his concurrence. “An individual requesting compassionate release will, in all cases, be serving a sentence that a district court once held was ‘sufficient but not greater than necessary’. If a district court’s original § 3553(a) analysis could always prove that a sentence reduction would intolerably undermine the 3553(a) factors, then 18 U.S.C. § 3582(c)(1) would, in effect, be a nullity. There is good reason to believe that, in some cases, a sentence that was “sufficient but not greater than necessary” before the coronavirus pandemic may no longer meet that criteria. A day in prison under the current conditions is a qualitatively different type of punishment than one day in prison used to be. In these times, drastically different. Some facilities house inmates who now serve their sentences knowing that they are not equipped to guard against a virus that may result in serious illness or death. Other facilities keep COVID-19 at bay by placing inmates in solitary confinement, ending prison programs, restricting visitation, and limiting access to nonessential medical care… These conditions, not contemplated by the original sentencing court, undoubtedly increase a prison sentence’s punitive effect.”

United States v. McGee, Case No. 20-5047, 2021 U.S. App. LEXIS 9074 (10th Cir. March 29, 2021)

United States v. Maumau, Case No 20-4056, 2021 U.S. App. LEXIS 9510 (10th Cir.  April 1, 2021)

United States v. Kibble, Case No 20-7009, 2021 U.S. App. LEXIS 9530 (4th Cir.  April 1, 2021)

– Thomas L. Root

First, Do Something Futile… And Do It Well – Update for February 19, 2021

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

COMPLETENESS COUNTS IN COMPASSIONATE RELEASE REQUEST TO WARDEN

compassionate200928Cory Williams wanted to file for compassionate release based on what he alleged was misconduct by his trial judge. So he dutifully asked his warden to bring the motion, as required by the administrative exhaustion requirement of 18 USC § 3582(c)(1)(A)(i). The BOP refused, of course (as it always does), so Cory himself filed a compassionate release motion with the federal court that had originally sentenced him.

Early on in the COVID-19 pandemic, a number of federal courts adopted standing orders that all inmates filing their own compassionate release motions would have counsel appointed to assist them. Cory’s court was one of those. The court appointed counsel to represent Cory. As we all know, counsel knows best (probably true in this case, where a defendant was essentially asking a judge to acknowledge his own misconduct was so bad that a defendant should be freed from prison). Counsel wisely scrapped Cory’s “I-should-go-home,-Your-Honor,-because-you’re-a-bum” argument, and filed an amended compassionate release motion that sought Cory’s based solely on COVID-19.

The government argued Cory had not exhausted his remedies with the BOP, because he had not raised his susceptibility to COVID-19 to the warden as a reason for compassionate release. Last week, the 7th Circuit agreed with the government.

“We have not yet had occasion to consider whether, in order properly to exhaust, an inmate is required to present the same or similar ground for compassionate release in a request to the Bureau as in a motion to the court,” the Circuit ruled. “But now that the issue is squarely before us, we confirm that this is the rule — any contrary approach would undermine the purpose of exhaustion.”

negativezero210219“The purpose of exhaustion…” That’s like saying the purpose of taking your kid to see Santa Claus at the Mall is to be sure he brings her the right toys on Christmas morning. Between March and December 2020, the BOP only granted 11 out of 10,940 inmate requests (that’s 0.001005484%, for you math fans). Let’s round that to about one out of 1,000 requests.

The § 3582(c)(1)(A)(i) exhaustion requirement seems like so much Kabuki theater. No matter. A request to the warden is the price of admission, and that request should clearly state the grounds the inmate intend to use when he or she petitions the court without the BOP’s help, as invariably is the case.

United States v. Williams, Case No 20-2404, 2021 USApp LEXIS 3762 (7th Cir. Feb. 10, 2021)

– Thomas L. Root

BOP Anti-vaxxers Complicate Prison Vaccine Rollout – Update for February 2, 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.

MOST BOP STAFF ARE REFUSING COVID-19 VACCINES

vax210202You’d think that with all of the Federal Bureau of Prisons employees union belly-aching (just about all of art justified) over management fumbles in protecting staff and inmates from COVID-19, correctional officers would be jumping line to get inoculated. But in a nation where people are clamoring for a shot in the arm, at many facilities more than half of the BOP’s employees are turning down the vaccine. (Guess they don’t want Bill Gates’ microchip in their arm, but given how well Windows works on computers, what do they have to fear?)

The BOP has used up 97% of its initial allotment of vaccine, and the results cannot be what the agency hoped for. Most facilities are reporting that not more than half of BOP staff offered the vaccine has agreed to take the vaccine. As a result, inmates have been getting inoculated with vaccines being turned down by staff, reportedly about 4% of the inmate population and 21% of the staff have been vaccinated, leading to journalistic screeds such as this one decrying vaccinated those low-down convicts before honest citizens.

FCI Hazelton’s experience is typical. The facility got 660 doses of vaccine three weeks ago. Only 35% of the prison’s 800 employees agreed to receive the vaccine, with the rest of the doses – which had to be used within a short period of time – distributed to about 10% of the 3,134-inmate population.

punch210202The BOP previously planned that inmates would be offered vaccines according to their risk factors in the next distribution of the vaccine. No change to that plan has been announced, but in the last 10 days, the availability of vaccine has become problematical. Politico reported a day ago that “Biden’s team is still trying to locate upwards of 20 million vaccine doses that have been sent to states — a mystery that has hampered plans to speed up the national vaccination effort. They’re searching for new ways to boost production of a vaccine stockpile that they’ve discovered is mostly empty. And they’re nervously eyeing a series of new Covid-19 strains that threaten to derail the response… ‘It’s the Mike Tyson quote: ‘Everybody’s got a plan until they get punched in the mouth,’ said one person with knowledge of the vaccine effort.”

As of yesterday, the BOP reported 2,939 inmate COVID cases (down 18% from the week before) and 1,802 sick staff (down 11%). COVID is still present in 126 facilities. Six more inmates were reported, raising the total to 228. Incidentally, the BOP is now reporting on the number of vaccine doses it has delivered, including the number at each facility.

Vice, COVID-19 Devastated Prisons. Now Some Inside Don’t Want the Vaccine (January 29, 2021)

WLS-TV, Inmates getting COVID-19 vaccine while millions struggle to get appointment for shot (January 22, 2021)

WV News, Hazelton warden says employees, inmates vaccinated (January 30, 2021)

Politico, ‘It’s a mess’: Biden’s first 10 days dominated by vaccine mysteries (January 30, 2021)

– Thomas L. Root

Risk of COVID Interrupts Death For A Bit – Update for January 14, 2021

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

HOW BAD IS COVID?

Despite the 11th-hour Supreme Court petitions, the celebrity protests, the scathing editorials, nothing has stopped the Trump Administration’s headlong rush to execute federal inmates. Thirteen have been executed this century, 10 of them in the last six months.

Then came COVID.

President-elect Joe Biden has promised to halt the lethal injections, but three more were scheduled to die this week until last Tuesday, when SD Indiana Judge Jane Magnus-Stinson ruled that the federal government’s poor management of the previous 10 executions “has created a substantial risk” that other inmates and staff may contract the virus.

The judge got promptly overruled by higher-ups, so the death march continued with killing Lisa Montgomery two days ago. The government plans on doing in two more inmates between today and next Wednesday at noon, when the new President stops it.

executionwoman21011For the BOP to be able to carry out the remaining executions, the judge ruled, it has to create a contact log that tracks staff who come into close contact with others during the execution process. For 14 days after the execution, execution staff have to take daily rapid COVID-19 tests, and anyone who produces a positive test must go through contact tracing. “The defendants have touted the availability of testing but have chosen not to utilize rapid testing of staff and visitors who enter prison grounds,” the judge wrote. “Most disconcerting, the defendants represented to the Court that contact tracing would occur after any BOP staff member involved in the executions tested positive. This has not been the case—and the Court finds the failure was not by accident but by design.”

COVID might have been stymied at stopping the intentional killing, but it remains adept at bringing death to inmates. The number of dead inmates hit 198 last Friday. Inmate COVID cases fell 25% between Dec 31 and last Wednesday, but then jumped back up to 6,227 as of Friday. They started falling again (as the BOP continues to declare anyone who tested positive 10 days ago to be cured), settling at 5,043 yesterday.

Ominously, BOP staff cases continue to climb. The number crossed  2,000 for the first time ever last week, and stood at 2,107 yesterday. If the staff keeps getting sick, more inmates invariably will contract it as well.

BOPCOVID210113

As of yesterday, FCI Ft Dix reported 461 cases, with Lexington (444 cases), Butner Medium II (208 cases) and nine other facilities with more than 100 cases each, with 19 more having 50 or more cases.

The BOP’s vaccine program is not going all that well. Government Executive reported last week that the Bureau “has received just 12,800 vaccine doses, but has already used 57% of those.” The BOP has distributed the vaccine to only 31 of its roughly 150 facilities. COs and health care workers are receiving the vaccine in the BOP’s first phase of distribution, although some inmates have gotten vaccines when stocks remained after all employees who elected to get vaccinated had been served. Only about “half of staff at each of the 31 facilities receiving vaccines have so far been vaccinated, according to Justin Long, a bureau spokesman. Inmates will begin receiving doses when more become available under a plan developed by the Trump administration’s Operation Warp Speed, Long said.”

Meanwhile, a national debate is brewing over whether inmates should be inoculated before the general population. Health officials say inoculating prison employees without giving the shot to prisoners won’t help stop the spread. “It doesn’t make sense to vaccinate workers but not vaccinate the people they are charged with protecting,” said Wanda Bertram, a spokeswoman for the Prison Policy Initiative, which is advocating that staff and inmates receive the vaccine.

nothing170125But a typical reaction came from Colorado Gov. Jared Polis, a Democrat, who said last month, “There’s no way it’s going to go to prisoners before it goes to people who haven’t committed any crime.”

Meanwhile, the Minnesota ACLU accused FCI Waseca staff of showing deliberate indifference to inmates during a massive COVID-19 outbreak in a hearing last Wednesday. The ACLU represents a plaintiff class of inmates seeking a temporary injunction to release many Waseca inmates to home confinement to curb the spread of the outbreak.

ACLU lawyer Clare Diegel called it a “drastic remedy” but necessary because of “terrifying” conditions at the prison. But Erin Secord, an AUSA representing the BOP, insisted the prison had taken numerous steps to protect inmates, the infections had been quelled and the court lacked jurisdiction to release prisoners. She said the suit should be dismissed.

control200511The president of a union representing employees at FCI Williamsburg in South Carolina last week blamed prison leadership for decisions that led to skyrocketing COVID-19 cases there. ”They made some changes on the process of what we were doing… that allowed COVID to actually walk into the institution,” American Federation of Government Employees’ Local 525 President Stephen Pinckney said. “From there, it spread like wildfire once it got in.”

Pinckney alleged that the process of screening people entering the complex to determine whether they had potential symptoms of COVID-19 symptoms was shifted from outside the facility to inside in early December. “I really would like to see our executive staff removed for one thing because they are more concerned right now on the financial side of the institution that they are about the health and wellbeing of staff there,” Pinckney said.

Indianapolis Star, Terre Haute executions paused by judge until COVID-19 measures are instituted (January 8, 2021)

Government Executive, Federal Agencies Have Distributed 200K Coronavirus Vaccine Doses So Far (January 4, 2021)

Wall Street Journal, As Covid-19 Surges in Jails, Guards Want Vaccine Early (January 4, 2021)

WCSC-TV, Charleston, South Carolina, Prison workers union calls for action on COVID-19 outbreak at FCI Williamsburg (January 8, 2021)

– Thomas L. Root

Compassionate Release Only Breaks Even in Two Appeals Decisions Last Week – Update for January 11, 2021

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

A TALE OF TWO COVID DECISIONS

Two circuits handed down decisions on COVID compassionate release last week. Like Charles Dickens’ “best of times, worst of times,” the rulings represented the best in appellate decision-making and the worst.

tutorial210111The Tutorial: Section 3582 of Title 18, United States Code, governs the imposition of sentences, including regulating the limited circumstances under which a sentence can be modified. Once such circumstance is found in § 3582(c)(1)(A)(i), which provides that a court may reduce a sentence when it finds “extraordinary and compelling” reasons to do so, and concludes that such a reduction is consistent with the factors to be considered when a sentence is imposed (found in 18 USC § 3553(a), and generally called “3553(a) factors“).

Since the advent of COVID-19, courts have granted sentence reduction motions (also called “compassionate release” motions, the same way all tissues are called “Kleenex”) in cases where the prisoner has health conditions that increase his or her susceptibility to COVID-19. The approval rate has been something like 19% of all compassionate release motions, but in a criminal justice system in which 97 out of 100 people charged with a federal crime get convicted, the compassionate release odds seem to a lot of inmates to be a sure thing.

One fly in the ointment has been a § 3582(c)(1)(A)(i) requirement that a compassionate release comply with “applicable” Sentencing Commission policies. The only Sentencing Commission policy has not been updated since before the First Step Act (which is what have inmates the right to file their own compassionate release motions), and the policy contains limitations clearly at odds with the intent of Congress in opening up compassionate release to inmates. As a result, four courts of appeal so far have ruled that district courts need pay no mind to the “applicable policies” language of § 3582(c)(1)(A)(i), at least until the Sentencing Commission gets around to changing the policy.

Now for the two decisions of the week:

best210111The Best: A district court found Lisa Elias’s hypertension (high blood pressure) alone was not an extraordinary and compelling reason to grant a sentence reduction. The 6th Circuit last week upheld the denial, underscoring the broad discretion district judges have in deciding compassionate release cases with thoroughness and careful reasoning.

Noting that three other circuits now agreed with its Jones decision that Guideline 1B1.13 does not limit courts in deciding prisoner-brought compassionate release motions, the 6th said “there has emerged a newfound consensus among the courts, and the government provides no compelling reason for us to disturb the consensus of our sister Circuits. Therefore, we hold that 1B1.13 is not an applicable policy statement for compassionate-release motions brought directly by inmates, and so district courts need not consider it when ruling on those motions. Further… district courts may deny compassionate-release motions when any of the three prerequisites listed in § 3582(c)(1)(A) is lacking and do not need to address the others… And, in the absence of an applicable policy statement for inmate-filed compassionate-release motions, district courts have discretion to define ‘extraordinary and compelling”’ on their own initiative.”

worst210111Now the worst: Chadwick Townsend sought compassionate release because, he claimed, his hypertension, high cholesterol and a 10-year old stroke put him at higher risk from COVID-19. His district judge held Chad’s reasons were not extraordinary and compelling, and Tom appealed.

The 5th Circuit turned him down. It held that while Chad’s “chronic illnesses place him at a higher risk of severe symptoms, should he contract COVID… it is uncertain that he is at a significantly higher risk than is the general inmate population. In fact, nearly half of the adult population in the United States suffers from hypertension. And roughly 12% of Americans suffer from high cholesterol. Thus, we cannot say that either of those conditions makes Thompson’s case “extraordinary.” Unfortunately, both are commonplace.”

The Circuit relied on Guideline 1B1.13 without observing that four other circuits have held it does not apply to inmate-filed compassionate release motions. Acting as though it had just emerged from a cave where it spent the last year, the panel noted with some surprise and puzzlement, “To be sure, courts around the country, in some exceptional cases, have granted compassionate release where the defendant has demonstrated an increased risk of serious illness if he or she were to contract COVID. Even where they have denied release, some courts have assumed that the pandemic, combined with underlying conditions, might be an extraordinary and compelling reason for compassionate release. But that is certainly not a unanimous approach to every high-risk inmate with preexisting conditions seeking compassionate release.”

The Circuit seemed to conflate “extraordinary and compelling” reasons with the separate compassionate release step of considering the 18 USC § 3553(a) sentencing factors: “The courts that granted compassionate release on those bases largely have done so for defendants who had already served the lion’s share of their sentences and presented multiple, severe, health concerns. Even where the court denied the motion on grounds other than the lack of ‘extraordinary and compelling reasons,’ the defendants’ medical conditions oftentimes were more serious than are Thompson’s. Fear of COVID doesn’t automatically entitle a prisoner to release. Tom can point to no case in which a court, on account of the pandemic, has granted compassionate release to an otherwise healthy defendant with two, well-controlled, chronic medical conditions and who had completed less than half of his sentence.”

Sentencing Law and Policy, Sixth Circuit panel reiterates “district courts have discretion to define ‘extraordinary and compelling’ on their own initiative” for 3582(c)(1)(A) motions (January 7, 2021)

United States v. Elias, Case No. 20-3654, 2021 U.S. App. LEXIS 251 (6th Cir. January 6, 2021)

United States v. Thompson, Case No. 20-40381, 2021 U.S. App. LEXIS 194 (5th Cir. January 5, 2021)

– Thomas L. Root