Tag Archives: covid-19

You’re Not Sick If We Say You’re Not Sick – Update for August 17, 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.

MIRACLE RECOVERIES SEEM TO FLATTEN OUT AS CRITICS TAKE AIM AT BOP AND MARSHALS

The Federal Bureau of Prisons COVID-19 numbers fell 9% last week, but that statistic is only part of the story.

After bottoming out at 1,272 on Tuesday, the number of active inmate coronavirus cases climbed back into the 1,300s, where they stayed all week. Last night, the number was 1,356. What’s more, BOP staffers with COVID-19 stands at 570, virtually the same as the 571 sick staffers a week ago. The number of BOP facilities with active cases fell slightly from 114 to 111. Deaths, unsurprisingly, rose from 116 to 118 (this number, like the number of inmate cases, includes federal prisoners in private prisons as well).

InmateCOVID200817

Since March, the BOP has administered 45,702 tests. If this were one test per inmate, the agency would have completed tests on 29% of its population (but there’s no assurance some people have not been tested multiple times). The BOP is still finding an infection rate among inmates to be 26%.

What the stats show is that the BOP has exhausted its supply of infected inmates it can now miraculously declared to be cured because of a lapse of 10 days from the date the positive test came back. Once again, it appears that the Bureau is finding new cases as fast as it can write off old one.

At the same time, the number of sick staffers is stubbornly refused to fall, and remains nearly double a month ago and three times the level in mid-June. Likewise, the number of institutions where the virus is present is not budging.

transfer200817These Transfers Are Killing Me: Nevertheless, Phase Nine is now in place, and the BOP is seeing inmate transfers and admissions once again. Meanwhile, VICE News published a lengthy article last week alleging that continued US Marshal Service transfer of prisoners during the pandemic was responsible for much of the spread of COVID-19 throughout the BOP. According to VICE News, whistleblower complaints it had obtained alleged “federal prisoners infected with the coronavirus have been shipped as far as Puerto Rico in recent weeks, and to federal lock-ups in Alabama and Florida. BOP employees say prisoners have also tested positive after being shuffled around to facilities in Colorado, Illinois, Texas, Oklahoma, Pennsylvania, and Louisiana.”

VICE News quoted Anthony Koeppel, a BOP union local official at FCI Pollock, as saying, “It’s putting staff at risk, it’s putting inmates at risk, and it’s putting the community at risk. We’re talking about lives here. This is an extremely dangerous situation.”

The Marshals say they aren’t required to do any testing because “an agreement was made” that the BOP would handle tests and quarantines once prisoners are transferred into its lock-ups.

VICE News said BOP staff and prisoners have blamed transfers for helping the COVID-19 “wreak havoc across the BOP, killing 111 prisoners and at least one staff member, and infecting over 10,000 prisoners and 1,200 workers… The agency officially halted most movement of prisoners in March in an effort to limit the spread of the virus; when it does transfer prisoners itself, it requires them to undergo coronavirus testing and a 14-day quarantine before and after being moved. But the Marshals don’t abide by those rules — and they keep moving people. While transfers have slowed — down 76% from April to July compared to the same period last year, according to the Marshals — they never truly stopped.”

herd200817Prisons and Herd Immunity:  The Los Angeles Times noted last week that the prison experience with COVID-19 at San Quentin State Prison north of San Francisco suggests that herd immunity would come with substantial cost. “Herd immunity” is the idea is that eventually, a sufficient percentage of the population will have survived COVID-19 and become immune, which in turn protects the rest of the uninfected population by interrupting the spread of the virus.

“COVID-19 spread unchecked across California’s oldest prison,” the Times reported, “in ways that stunned public health experts, despite efforts to control the disease. As of Monday, there had been more than 2,200 cases and 25 deaths, among a population of more than 3,260 people.”

Expert Questions BOP “Recovered” Declarations: The BOP has experienced its own “San Quentins,” the latest arguably being FCI Seagoville, Texas, where 77% of the 1,746 inmates had COVID-19. As of Sunday night, only 35 inmates reportedly had active cases.

But Dr. Homer Venters – an epidemiologist investigating COVID-19 in the BOP – is skeptical. “People that tested positive, let’s say three, four weeks ago, may be considered recovered or not part of active cases,” Venters told KXAS-TV. “When you kind of wave a wand over people and say they’re recovered, my experience going into jails and prisons is many of them are not actually recovered. Many of them have new shortness of breath, chest pain, ringing in the ears, headaches. Other very serious symptoms.”

Serious Long-Term Effects: Another recent concern has arisen over long-term heart damage among younger people who contract COVID-19. Experts have linked coronavirus to development of a condition called viral myocarditis, which is a weakening of the general heart muscle.

COVIDheart200720“That is happening upwards of 50% of the people who are hospitalized with COVID will end up with some kind of cardiac damage. Some more severe than others,” Dr. Scott Miscovich, a Honolulu COVID specialist, said. “When you have that much damage to your heart muscles, not only are you going to be short of breath walking to a chair to the bathroom, you’re probably only going to survive five years.”

VICE News, ‘Con Air’ Is Spreading COVID-19 All Over the U.S. Prison System (August 13)

Los Angeles Times, San Quentin’s coronavirus outbreak shows why ‘herd immunity’ could mean disaster (August 11)

KXAS-TV, Seagoville Federal Prison COVID-Cases Fall Drastically, Expert Warns Against New Data as Family Mourns Loss (August 14)

KHON-TV, Hawaii COVID-19 expert concerned about heart damage for young people (August 10)

– Thomas L. Root

BOP Whistles a Happy Tune – Update for August 11, 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.

DEATH DOESN’T TAKE A HOLIDAY, BUT BOP SEEKS NORMALCY

Six more inmates died of COVID-19 last week, bringing the BOP’s death total to 116. Twenty-two have died since July 1. Even while the BOP heralded a drop in the number of sick inmates from 2,476 to 1,395, a reduction of 44%, the number of sick staffers hit 580, an increase of 14% from last week (and all-time high). COVID-9 has now reached a record 114 institutions (93% of all BOP facilities).

whistle200811Still, the BOP bravely whistles a happy tune, seeking a return to normalcy as though it has the virus on the run. The agency announced Phase 9 of its rickety COVID-19 “Action Plan.” Phase 9 relaunches a number of EBRR-sanctioned programming (the programs that earn First Step Act credit), some – like the Residential Drug Treatment Program – to 100% and others to half capacity. UNICOR, the federal prison industry, is to spool up to 80% by September 1 and 100% a month later. Recreation time outside will resume, with limitations on group size and length of rec sessions. Inmate transportation begins again.

Meanwhile, fresh breakouts of COVID-19 were reported at USP Lewisburg (51 ill), FCI Loretto (37 ill), the Victorville, California, prison complex (127), USP Marion (70 ill) and FCI Edgefield (60 ill). Those locations join Coleman, Miami, Elkton, Forrest City, Beaumont, Carswell, Oklahoma City, Three Rivers and scores of other BOP institutions with the virus. CNN last week branded FCI Seagoville as “the hardest-hit federal prison in the United States” where “more than 1,300 of the roughly 1,750 prisoners have tested positive for the virus — a stunning three out of every four inmates.”

Since the beginning of May, when there was only a single coronavirus case at Seagoville, the number of inmates testing positive soared to 1,333, according to BOP. Twenty-eight of the roughly 300 prison employees have also tested positive. The outbreak means that the facility has more coronavirus cases than about 85% of the counties in the US.

covidmap200811The virus has reached FCC Florence (Colorado) and FDC Honolulu as well.

At FCI Miami, in Florida, nearly half of the inmates reportedly have tested positive. Kareen Troitino, the FCI Miami corrections officer union president, told ABC News that the virus was spread by one employee to inmates at the facility and, within a day cases at the facility went from one to four. Troitino says the only protective equipment the BOP issued were surgical masks. “One employee walked into work. He did not show a fever. He passed our screening procedures. He was positive. And that one employee spread it to numerous inmates. And then that’s it. Ever since then, it’s been a disaster.”

Troitino’s union local has sued the BOP and several other federal agencies, seeking hazard pay for at-risk essential workers.

In Washington, D.C., Democratic senators and representatives sponsored legislation in both chambers last Thursday to require the array of agencies that administer the nation’s jails and prisons to collect and report publicly detailed information about the spread of COVID-19 in their facilities. Joe Rojas, southeast regional vice president of the federal prison employees, told ABC News, “The Bureau is the largest agency within the DOJ and there’s no oversight. The BOP director doesn’t even get confirmed he just gets appointed.”

Forbes magazine complained last week that the BOP’s “Phase 9 Action Plan… looks a lot like Phase Eight… which looked a lot like Phase Seven. It begs the question as to whether there is a cohesive plan to address the COVID-19 pandemic that has infected over 10,000 federal inmates and over 1,000 correctional staff… killed 110 inmates and one staff member.”

coronadog200323BOP employees at FCI Tallahassee publicly expressed concern over Phase 9’s inmate transportation. “If we’re going to receive inmates that are positive, if we’re going to be assigned to inmates that have already tested positive it’s pretty shaky from day-to-day,” Yalimany Dudley, CO, told WTXL-TV.

Dr. Kristian Morgan, a nurse at the FCI, said inmates are coming in without being tested beforehand, bringing the virus with them. “We received about eight inmates from the Marshal Service last week. Five of those tested positive as soon as they entered inside the institution when we did rapid testing.”

BOP Memorandum, Coronavirus (COVID-19) Phase Nine Action Plan (August 5, 2020)

CNN, Inside the federal prison where three out of every four inmates have tested positive for coronavirus (August 8, 2020)

KTVT, Inside the Federal Prison Where Three Out of Every Four Inmates Have Tested Positive for Coronavirus (August 9, 2020)

Canon City Daily Record, 3 new cases of COVID-19 in Fremont County; Bureau of Prisons reporting 3 cases (August 3, 2020)

Honolulu Civil Beat, First Hawaii Inmate Tests Positive for COVID-19 Along With 4 Corrections Officers (August 7, 2020)

ABC News, As coronavirus spreads through nation’s jails and prisons, lawmakers demand more transparency on toll (August 6, 2020)

WXII-TV News, ‘We’re Risking Our Lives’: Front-Line Federal Workers Sue For Hazard Pay (August 7, 2020)

Forbes, As Bureau of Prisons Enters “Phase 9” Of COVID-19 Plan, BOP Staff Wonder If There Is A Real Plan (August 7, 2020)

WTXL-TV, FCI Tallahassee employees fear the worst as inmate transportation restarts (August 6, 2020)

– Thomas L. Root

HEALS Act Proposes Financial Pain For Inmates – Update for August 5, 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.

SENATE STIMULUS PROPOSAL EXCLUDES PAYMENTS TO MOST INMATES

I reported back in April that the CARES Act did not exclude inmates from collecting the $1,200 stimulus check. Since then, the IRS has tried to say otherwise, but it has met a lot of pushback.

nothing170125The House and Senate are still far apart on a second stimulus bill, which everyone hoped would be in place by last Friday. One provision in the Senate version tacitly admits that nothing in the CARES Act kept inmates from collecting stimulus checks. The House version has no such limitation.

Newsweek reported last Friday that the Senate’s outline for stimulus checks, contained in the so-called HEALS Act, revises the eligibility to exclude prisoners in this round. Forbes reported that “under the Senate proposal, any decedent who died before January 1, 2020, any person in jail at the time Treasury processes the check or any individual in prison for all of 2020, may not receive a check. This language is also retroactive to the CARES Act checks.”

At this time, no one knows what provisions – the House’s or the Senate’s – will be included in the final package (or even whether there will be a final package).

Any interesting thought, however: The very fact that the Senate version specifically excludes those in jail or prison permits the reasonable inference that – contrary to what the IRS has argued – the CARES Act as written last March did not do so.

Newsweek, Should Prisoners Get Stimulus Checks? Their Innocent Families Suffer If Not (July 31)

Forbes, Senate CARES Act 2.0 Includes More Stimulus Checks, Unemployment Benefits (July 27)

Kiplinger, Second Stimulus Check Update: HEALS Act vs. CARES Act (July 29)

– Thomas L. Root

BOP Settles Connecticut Inmate COVID Class Action – Update for August 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.

MIRACLE MATH AND A CONNECTICUT COVID-19 SETTLEMENT

If you can’t heal’ em with healthcare, then mend ‘em with math.

wonders200803The Bureau of Prisons just completed a week that was nothing short of miraculous. With nearly 4,500 sick inmates only eight days ago, the BOP reported only 2,426 active cases of COVID-19 last night (101 of which are federal prisoners in private joints). To find any comparable medical miracle, you’d have to go back to the Bible.

The numbers have nothing to do with inmates actually beating coronavirus (although some certainly have done so). Instead, it’s purely arithmetic. The CDC COVID-19 guidelines for prisons directs that people with confirmed or suspected COVID-19 infection be put into medical isolation “to prevent their contact with others and to reduce the risk of transmission.” Medical isolation is to end when the inmate meets pre-established testing criteria for release from isolation. The criteria include that “least 10 days have passed since symptom onset” and the inmate has no other symptoms.

The BOP appears to be following the 10-day standard, which is letting it write hundreds of inmates off the “infected” list every day, even in the face of other numbers that should give BOP officials pause. Inmate deaths reached 110 this week (105 in the BOP, five federal inmates in private prisons), with two inmates dying in Texas and three in Florida. (The BOP has added a note on its webpage that four of the deaths occurred while the inmates were on home confinement, which a reasonable person might think was a technique for deflecting blame – you know, the ‘see, we’re not killing them as fast as CARES Act release is’ kind of thing).

COVID-19 numbers200803

In the last month, the number of BOP employees with COVID-19 has quadrupled, with the number last night standing at 503. Given there have been no family visits or inmate transfers for 120 days or better, BOP staff people coming and going are the last vector standing.

The virus is still active in 106 facilities, 86% of all BOP prisons. As FCI Beaumont proved in June, it’s possible to go from eight  COVID-19 cases to 463 in a little more than a month. Now, it seems it may be USP Lewisburg’s turn (see below).  

COVIDfacilities200803

Notably, after the number of BOP inmates with the virus fell for every day in the past week – in the last three days by double digits – the decline stopped, and the numbers inched up by a percentage point, last night.

In COVID-19 legal news, inmates claiming that conditions of confinement at FCI Danbury put them at risk of COVID-19 settled last week after prison officials agreed to an enhanced review process to evaluate prisoners for CARES Act home confinement. The inmates sued in late April when FCI Danbury was among the hardest hit BOP facilities. By early May, about 60 inmates and 50 staff members had contracted the disease and one inmate has died.

The settlement requires the prison to continue with a rigorous process that ranks inmates by their susceptibility to infection and associated health risks and identifies candidates for various forms of early release. Shortly after the case was filed, US District Judge Michael P. Shea accused the prison administration of failing to comply quickly with guidelines issued by the Dept. of Justice and Centers for Disease Control and Prevention for evaluation and possible release of inmates.

release161117Attorney David Golub, whose law firm represented the inmates pro bono, told the Hartford Courant, “What he basically said to them was, ‘You have to identify the people who are medically vulnerable, you have to identify them right way and you have to make reasoned decision about whether to release to home confinement or not.’ And he monitored them,” said .

The parties will file a joint motion to certify the settlement class today.

I reported last week about the DOJ Inspector General’s report on FCC Lompoc, California, which included that the BOP’s use of CARES Act home confinement authority “was extremely limited.” This week, the Lompoc administration responded that “these findings must be placed in context, as these were unique circumstances where the BOP, along with the rest of the country, was learning about how to treat and manage this novel virus. The mitigation of COVID-19 in all of our facilities, including FCC Lompoc, has been and remains our highest priority.”

The IG report found that the BOP had identified 509 Lompoc inmates who qualified for CARES Act release, but had release only eight of them. Since the Report and a July 14 court order in the class-action suit brought by Lompoc inmates against the institution, the BOP has sent 72 CARES Act home confinement recommendations to a review committee, while an additional 655 applications have yet to be looked at.

covidtest200420In Pennsylvania, USP Lewisburg – long COVID-19 free – has begun testing inmates after finding a case of the virus last Thursday. As of last night, 35 inmates have tested positive. All cases are at the institution’s penitentiary, not the camp. A BOP spokesman told local media that testing should increase the number of COVID cases there.

As of last night, the BOP had completed 41,000 tests, which – if every inmate got only one test – would cover 26% of all inmates. A full 28% have tested positive.

CDC, Interim Guidance on Management of Coronavirus Disease 2019 (COVID-19) in Correctional and Detention Facilities (July 22)

CDC, Discontinuation of Isolation for Persons with COVID-19 Not in Healthcare Settings (July 22)

Hartford Courant, Danbury prison inmates settle with Bureau of Prisons in suit over COVID threat (July 27)

Whitted v Easter, Case No. 3:20cv569 (D.Conn.)

Santa Maria, California, Sun, Court order, federal inspection agree with class-action lawsuit’s claims that Lompoc penitentiary could have better stopped the spread of COVID-19 with more home confinement (July 29)

Order, Torres v. Milusnic, Case No. 20cv4550 (CD Cal., July 14, 2020)

Lompoc, California, Record, Officials defend methods used in Lompoc prison’s response to COVID-19 (July 28)

Sunbury, Pennsylvania Daily Item, Federal Bureau of Prisons reports 35 inmates tested positive for virus at USP Lewisburg (Aug. 1)

– Thomas L. Root

It’s Who You Know – And Who Likes You – Update for July 29, 2020

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

A TALE OF TWO CELEBRITY PRISONERS

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

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

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

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

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

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

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

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

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

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

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

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

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

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

– Thomas L. Root

Has BOP Found ‘Peak COVID’? – Update for July 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.

BOP COVID NUMBERS MAY BE CRESTING AS CRITICISM OF BOP PANDEMIC RESPONSE GROWS

The number of Federal Bureau of Prisons prisoners with COVID-19 increased 14% last week to 4,413 as of Sunday night (an all-time high), after falling slight on Saturday. Yesterday, however, the number of infected inmates took a 7% plunge.

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It appears that all of that decrease was due to FCC Beaumont’s dramatic (some might say ‘miraculous’) decrease in reported cases, from 463 on Sunday night to 135 on Monday night. But for that decrease, BOP systemwide cases increased by 35.

Miracle200513Other numbers were not so encouraging. Infected BOP staff increased 33% to 405, and four more inmates died. Most ominously, 108 facilities have COVID-19, 88.5% of BOP joints, an increase of 9% over last week.

Of the 4,120 active inmate cases, Texas facilities FCI Seagoville has 1,257, the women’s FMC at Carswell has 529 cases, and Beaumont Low has 463. Other significant outbreaks are at FCI Miami and Coleman Low and Medium (Florida), Victorville Medium I (California), Butner Low (North Carolina), Elkton (Ohio) and Jesup (Georgia).

A report from the Dept. of Justice Inspector General released last week criticized BOP mismanagement of the pandemic at Lompoc. The report said two Lompoc BOP staff members came to work in late March despite experiencing coronavirus symptoms, although those symptoms were not detected during screening. Officials then failed to test or isolate an inmate who reported that he had begun having symptoms two days earlier and later tested positive. And thus it started.

Medical staff shortage limited inmate and staff screening for COVID-19 symptoms, and other staff shortages resulted in Lompoc officials delaying for 15 days the full implementation of staff movement restrictions required by BOP for institutions with active COVID-19 cases.

What’s more, the BOP’s use of home confinement authority in April was “extremely limited.” As of May 13, the IG report said, over 900 Lompoc inmates had contracted COVID-19 but only 8 inmates had been transferred to CARES Act home confinement.

Fault200728In a statement following the release of the report, the BOP said it had fixed nearly all of the issues identified by the inspector general. It blamed the Centers for Disease Control and Prevention guidelines for many of the problems cited in the report. “These findings must be placed in context, as these were unique circumstances where the BOP, along with the rest of the country, was learning about how to treat and manage this novel virus,” the agency said.

Meanwhile, in Los Angeles Federal Court, Judge Consuelo Marshall granted a preliminary injunction in a class-action lawsuit brought by the American Civil Liberties Union of Southern California that accuses the BOP Lompoc management of failing to take basic hygiene steps to protect those imprisoned.

The Judge ordered BOP officials to tell the court which inmates are medically eligible under CDC risk guidelines for release as part of a plan to reduce the population.

corona200323The BOP asked the judge to dismiss the lawsuit, noting it had built a field hospital and adopted mass testing in May. But after more than 70% of inmates at Lompoc Low tested positive, the judge found there was a “substantial risk of exposure to COVID-19, which is inconsistent with contemporary standards of human decency” and that the BOP had “likely been deliberately indifferent to the known urgency to consider inmates for home confinement, particularly those most vulnerable to severe illness or death.”

DOJ Inspector General, Pandemic Response Report 20-086, Remote Inspection of Federal Correctional Complex Lompoc (July 23, 2020)

CNN, DOJ watchdog report finds lack of staffing contributed to Covid outbreak in California prison (July 23)

Los Angeles Times, Judge orders release of vulnerable inmates at Lompoc prisons hit by virus (July 22)

Torres v. Milusnic, Case No 2:20cv4450 (C.D.Cal, entered July 14, 2020), 2020 U.S. Dist. LEXIS 131446

– Thomas L. Root

BOP’s Record-Setting COVID-19 Week – LISA Newsletter for July 20, 2020

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We’re back after a week of vacation in the wilderness (away from COVID-19, the Internet and cellphones).

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

TWIN PEAKS

twinpeak200720Last week was a record-setting one for the Bureau of Prisons, and not in a good way. As of last night, 3,861 federal prisoners in BOP and private prisons (and 318 BOP staff) had active coronavirus cases (a record), in 99 BOP facilities and six private prisons, as well as 46 halfway houses (a second record). A total of 101 federal prisoners have died from COVID-19 (a third record), the latest two reported deaths from FMC Carswell and FCI Seagoville, both in the Dallas-Fort Worth, Texas, area.

The number of BOP COVID-19 cases has now blown past the previous record of 3,461 on May 11, 2020. But on that date, COVID-19 was present in only 51 federal prisons, about half of yesterday’s total. The BOP’s history with COVID-19 is one of twin peaks, a spike in May 11 (due largely to the rampant pandemic at FCI Terminal Island) and the current spike, due in large part to Seagoville.

BOPCOVOD200720

The Dallas Morning News reported last Monday that FCI Seagoville announced an effort about two weeks ago to mass test inmates to identify asymptomatic prisoners. There were 61 active cases among inmates and three among employees that day. There were 882 cases as of last Tuesday. Last night, the number hit 1,122. That’s 62% of the inmate population.

One inmate quoted by the newspaper said many inmates feel certain they’ll catch it. He said the prison wasn’t prepared for the outbreak. Some inmates and their families think the virus spread in the facility through the prison staff, according to the paper. Another inmate, who spoke on the condition of anonymity because of his fear of reprisals, described health care in the facility as “spotty and inadequate,” especially at night and on weekends.

Things are not much better at FMC Carswell, the BOP’s medical facility for women. After recording two cases of COVID-19 in April, Carswell saw its third on June 29.

“After that, they started dropping everywhere,” one inmate told the Fort Worth Star-Telegram. “It’s like a scary movie.” As of last night, Carswell had 200 reported inmate cases.

coronadog200323The paper reported that multiple inmates “who did not want to be named out of fear of retaliation reported… that when an inmate tests positive, her belongings are not removed from the shared living space for hours. Inmates are responsible for cleaning the infected rooms but often do not have the proper PPE, two inmates wrote. One inmate who tested positive was allowed to use a shared bathroom, which was not cleaned for hours after she used it.”

Spectrum Bay News 9 of Tampa reported last Friday that the Federal Correctional Complex at Coleman, in Sumter County, Florida, correctional officers union officials say that coronavirus cases among both inmates and staff increased at each of the four Coleman facilities last week, and that the reality is “much worse” than what is reported. Union vice president Jose Rojas complained to the news channel that because the BOP does not test everyone, “you’re walking into a mine full of bombs not knowing who is positive and who is not.”

Rojas said that with growing concern over asymptomatic carriers, the union is now considering setting up a testing site for Coleman staff. He told the Miami Herald that “two officers were working while positive for the virus.”

Since March, Spectrum Bay News 9’s sister operation, Spectrum News 13, has requested interviews with Coleman wardens and BOP officials, along with a tour of FCC Coleman. “Our requests have been repeatedly denied,” Bay News 9 reported.

The Miami Herald reported Friday that “roughly a week ago, FCI Miami had a handful of confirmed infections – not good but better than many prison compounds. Thursday, according to the Bureau of Prisons website, the number had leaped to 93, a colony of vomiting, headachy coughing captives.”

plagueB200406The paper said Kareen Troitino, the FCI Miami corrections officer union president, blamed lack of protective equipment, close quarters and people going in and out. “One of the main challenges is that the Bureau of Prisons defines PPE as surgical masks and nothing more,” the Herald quoted Troitino as saying. “I get a lot of complaints from a lot of employees that they ran out of gloves and N95 masks.” he said.

“We are the new Wuhan, especially in Miami. It’s bad,” Rojas told the Herald. “I’m afraid for our staff.”

The more researchers learn about COVID-19, the uglier it gets. A team of British doctors warned a week ago that potentially fatal COVID-19 complications in the brain – including delirium, nerve damage and stroke – may be more common than initially thought. University College London research suggests serious problems can occur even in individuals with mild cases of the virus.

“We identified a higher than expected number of people with neurological conditions such as brain inflammation, which did not always correlate with the severity of respiratory symptoms,” Michael Zandi, of UCL’s Queen Square Institute of Neurology and University College London Hospitals NHS Foundation Trust, told Agence France-Presse.

Newsweek reported that a European Heart Journal – Cardiovascular Imaging study of 1,216 patients found that 55% of them showed heart damage resulting from COVID-19. of whom 813 had been diagnosed with COVID-19, and 298 were deemed probable cases.

COVIDheart200720

The participants were from 69 countries across six continents. They each had an echocardiogram done between April 3 and 20.

Co-author Professor Marc Dweck, consultant cardiologist at the University of Edinburgh, U.K., said, “Damage to the heart is known to occur in severe flu, but we were surprised to see so many patients with damage to their heart with COVID-19 and so many patients with severe dysfunction. We now need to understand the exact mechanism of this damage, whether it is reversible and what the long-term consequences of COVID-19 infection are on the heart.”

Dallas Morning News, As coronavirus spreads through Seagoville prison, inmates and family fear ‘a waiting game’ to get sick (July 14)

Fort Worth Star-Telegram, Women say life is ‘like a scary movie’ as coronavirus spreads in Fort Worth prison (July 13)

Tampa, Florida, Spectrum Bay News 9, Prison Union Leader Says COVID-19 Outbreak at Coleman Worse Than You Think (July 17)

Miami, Florida, Herald, COVID-19 races through Miami’s federal prison (July 17)

Agence France-Presse, Brain problems linked to even mild virus infections: study (July 8)

Newsweek, Scans Reveal Heart Damage in Over Half of COVID-19 Patients in Study (July 13)

– Thomas L. Root

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

Congress Lurching Toward Easing Compassionate, Elderly Offender Release? – Update for June 29, 2020

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

COVID-19 SPURS LAWMAKERS, CDC

corona200313Last week’s upsurge in COVID-19 cases nationally has begun to translate to an increase in Federal Bureau of Prisons inmates with coronavirus. A number that had dwindled last week to 1,256 by last Thursday shot back up to 1,429 as of last night. The inmate death count is 93, with COVID-19 present on 71 prison compounds throughout the BOP system (57% of all facilities).

As of yesterday, the BOP had tested 21,400 inmates, up about 12% from last week. The Bureau is still showing about 30% of inmates tested as positive for COVID-19, and it has only tested about now out of six inmates.

The noteworthy developments in COVID-19 last week, however, were not viral, but rather legislative and medical.

Legislative: Senators Richard Durbin (D-Illinois) and Charles Grassley (R-Iowa), principal authors of the First Step Act, last week jointly introduced S.4034, bipartisan legislation to reform the Elderly Offender Home Detention (EOHD) Program and compassionate release.

Sen. Charles Grassley (R-Iowa)
                  Sen. Charles Grassley (R-Iowa)

EOHD, authorized by First Step as part of 34 USC § 60541(g), permits the BOP to place prisoners who are 60 years old or older, convicted of non-violent offenses, and with good conduct in home detention for the remainder of their sentences. Compassionate release, expanded by First Step, permits a court to reduce a prisoner’s sentence for extraordinary and compelling reasons, pursuant to 18 USC § 3582(c)(1).

S.4034, dubbed the COVID-19 Safer Detention Act, would reform the EOHD and compassionate release by:

• Clarifying that the percentage of time an inmate needs to qualify for EOHD should calculated based on an inmate’s net sentence, including reductions for good time. Currently, the BOP charily calculates it as two-thirds of the total sentence, not two-thirds of the 85% of the sentence the inmate actually serves. This change has already passed the House by voice vote in HR 4018, which las been languishing in the Senate since last Christmas;

• Cutting the percentage of time an inmate must serve to qualify for  EOHD from two-thirds of the sentence to one-half;

• Making “old law” federal prisoners (those convicted prior to 1988) eligible for compassionate release;

• Making DC offenders housed in BOP facilities eligible for EOHD;

• Making denial of EOHD release subject to court review; and

• Providing that during the pandemic, COVID-19 vulnerability is deemed a basis for compassionate release, a statutory change that would prevent the government from trying to convince courts (and some have been convinced) that the pandemic is hardly extraordinary; and

• Shortening the period prisoners must wait for judicial review for elderly home detention and compassionate release from 30 to 10 days. Currently, there is no judicial review of a BOP denial of EOHD, and inmates must ask the BOP to file for compassionate release on their behalf, and wait 30 days for an answer before filing themselves.

Sen. Richard Durbin (D-Illinois)
Sen. Richard Durbin (D-Illinois)

It is unclear whether the bill will pass, but sponsorship by a Democrat and Republican increases its odds. Hamodia reported that the bill “will likely be attached it to another bill, such as a stimulus bill or the police-reform bill currently being crafted by Sen. Tim Scott (R-S.C.)”

Medical: The other COVID-19 major development last week was medical. Last Thursday, the Centers for Disease Control and Prevention in Atlanta released updated COVID-19 guidelines to adjust the ages and expand the health problems that could make people more likely to have severe complications. The move comes amid the rising number of younger patients and new studies that show the effects of certain conditions.

The new CDC guidelines are crucial for prisoners, because courts determine whether movants for compassionate release qualify according to whether the inmates have one or more of the CDC risk factors.

First, the CDC walked back the “65 and over” risk factor, which many judges have interpreted as being a hard number, denying any health-concern consideration for a 64-year old but treating a 66-year old prisoner as knocking on death’s door.

death200330Instead, CDC highlights that all ages could catch the coronavirus but effects of the infection may get worse as people get older. “There’s not an exact cutoff of age at which people should or should not be concerned,” Jay Butler, the CDC’s deputy director of infectious diseases, said in a news briefing.

Of more relevance to prisoners, the CDC has found that risks associated with obesity start at a much lower level. The CDC had held that only the morbidly obese (body mass index of 42+) were at risk. Now, the CDC says anyone with a BMI of 30 or more is at risk.

Under the old standard, a 50-year old 6-foot tall man would have to weigh 310 lbs. to be at risk. Now, the same guy only has to tip the scales at 225 lbs. to exceed a 30 BMI.

Other conditions CDC identified as elevating COVID-19 risk included chronic kidney disease, COPD, weaker immune system due to organ transplant, heart conditions, sickle cell disease, type 1 and 2 diabetes, asthma, dementia, cerebrovascular diseases, cystic fibrosis, high blood pressure, liver disease, pulmonary fibrosis, and an inherited blood disorder known as thalassemia. The CDC also added pregnancy to the list.

A number of inmates have been denied compassionate release because judges decided their risk factors – such as hypertension and dementia – did not match the risk factors on the prior CDC list. There is no statutory limitation to the number of times an inmate may file for compassionate release (other than the judge’s ire, perhaps), meaning that the changing COVID-19 risk landscape offers prisoners a new shot at release.

COVID-19 Tracker: The Marshall Project is running a state-by-state COVID-19 prison tracker website, which includes “Federal” as a category. The site charts total cases, inmates and staff currently sick, deaths, and new cases by date.

S.4034, COVID-19 Safer Detention Act (introduced June 22, 2020)

Hamodia, New Senate Legislation Expands Early Release (June 23)

CDC, People of Any Age with Underlying Medical Conditions (June 25, 2020)

Medical Daily, CDC Updates Guidelines On Coronavirus Risk Factors (June 26)

The Marshall Project, A State-by-State Look at Coronavirus in Prisons (June 25)

– Thomas L. Root

Death, SWAT and Smokes: A Quick Trip Around the BOP – Update for June 23, 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.

NEWS FROM AROUND THE BOP

Deadly Business: The Dept. of Justice last week set new dates to begin executing federal death-row inmates following a months-long legal battle over the plan to resume executions, which have been on hold since 2003 .

death200623Attorney General William Barr directed the BOP to schedule the executions, beginning in mid-July at USP Terre Haute, of four inmates convicted of killing children. Three of the men had been scheduled to die last year, when Barr ended an informal moratorium on capital punishment.

Congress Queries BOP: House of Representatives Homeland Security Chairman Bennie Thompson (D-Mississippi) last week asked the BOP for details about whether agency officers who helped police the Washington, DC, protest have been quarantined or tested for COVID-19 before returning to work.

Thompson, who joined with Rep. Raja Krishnamoorthi (D-Illinois), Rep. Jamie Raskin (D-Maryland) and Sen. Cory Booker (D-New Jersey), noted that some BOP officials deployed to the protest — part of a display of force demanded by President Trump — came from FCI Petersburg, in Hopewell, Virginia (site of a significant coronavirus outbreak), yet were seen without wearing masks.

IG Out of SORTS with BOP: The DOJ Inspector General last week issued a report last week recommending that BOP Special Operations Response Teams (SORT) be suspended until comprehensive guidelines are developed.

cops200623BOP institutions maintain their own SORTs. A typical Special Operations and Response Teams has 15 members, including an emergency medical treatment specialist, a firearms instructor, a rappel master, a security/locking systems expert, a blueprint expert, and several firearms and tactical planning/procedures experts. As of 2013, the Bureau maintained 44 SORTs involving more than 700 BOP staff. 

The DOJ Inspector General wrote, “SORT members deployed a distraction device munition in a confined space, which was not authorized for use under BOP policy; SORT members deployed real OC spray rather than inert OC spray during a training exercise, allegedly without proper authorization; and SORT members used force, including firing a simunition round, against staff members who were allegedly yelling to the SORT that they were ‘out of role’ and physically vulnerable… BOP policies we reviewed did not clearly specify the types of weapons, less than lethal weapons, and munitions, if any, that are authorized for use during BOP training exercises; and did not provide safeguards to ensure that exercises are conducted safely.”

cigarette200623BOP CO Gets Charged: The US Attorney’s Office for the Middle District of Pennsylvania announced on June 10 that a former correctional officer at FCI Schuylkill was charged on June 9 with bribery and corruption. The criminal information filed by the USAO alleged that between 2011 and 2016, the CO had smuggled tobacco into FCI Schuylkill in exchange for payments by prisoners.

AP, New dates set to begin federal executions (June 15, 2020)

Politico, Dems ask Bureau of Prisons for coronavirus update on staffers who manned protests (June 15, 2020)

DOJ Inspector General, Management Advisory Memorandum of Concerns Identified During Mock Exercises by Federal Bureau of Prisons Special Operation Response Teams (June 18, 2020)

Special Ops Magazine, Special Operations and Response Teams (SORT) (Jan. 2013)

DOJ, Former FCI Schuylkill Correctional Officer Charged In Bribe Scheme to Provide Tobacco to Inmates (June 10, 2020)

– Thomas L. Root