Tag Archives: covid-19

Coronavirus Simmers While BOP Gets Fried – Update for June 22, 2020

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

COVID-19 AIN’T GOIN’ AWAY

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

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

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

coronadog200323

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

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

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

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

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

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

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

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

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

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

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

– Thomas L. Root

BOP 4, Inmates 0 in COVID-19 Litigation – Update for June 15, 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.

THE WEEK IN COVID-19 LITIGATION

prisonhealth200313As of last night, June 14th, the number of Federal Bureau of Prisons inmates with COVID-19 had dropped from 2,109 a week ago to 1,341. The number of BOP facilities with COVID-19 on premises rose from 62 to 65, and then fell back to 62 as of last night. Deaths continued to climb, however, from 81 a week ago to 87 last night.

The numbers aren’t bad for the BOP. Inmate sickness has been fluctuating between 1,300 and 2,100 for a few weeks, and the number of prisons affected has leveled. But the BOP’s big advances last week were in the courtroom, not the medical suite.

Besides the 6th Circuit’s stay in FCI Elkton litigation, last Tuesday, Judge Rachel P. Kovner of the U.S. District Court for the Eastern District of New York denied prisoners a preliminary injunction because of inept medical care they claim amounts to cruel and unusual punishment, reasoning that despite deficiencies in MDC Brooklyn’s COVID-19 response, officials likely did not act with “deliberate indifference” to the health threat.

“Petitioners have not shown a clear likelihood that MDC officials have acted with deliberate indifference to substantial risks in responding to COVID-19,” Judge Kovner ruled. “Rather than being indifferent to the virus, MDC officials have recognized COVID-19 as a serious threat and responded aggressively.”

Nevertheless, the court cited significant problems with the BOP’s response to the pandemic. In particular, the judge noted the prison was way too slow responding to sick-calls requests and generally failed to isolate symptomatic inmates. “The MDC appears not to be isolating individuals who report COVID-19 symptoms,” in “tension with the CDC’s guidance” that they should be kept away from other inmates, Judge Kovner wrote. “Under standards of care that both parties have accepted, MDC officials’ apparent failure to fully implement the CDC guidance in these areas constitutes a deficiency in the MDC’s response to COVID-19.”

destroyevidence200615Judge Kovner also held the BOP had destroyed evidence by shredding the paper sick call requests used as the pandemic worsened. She sanctioned the BOP by drawing the inference that “the destroyed records would have contained additional reports of COVID-19 symptoms.” Still, the judge accepted the prison’s claims that it was doing the best it could under the circumstances, ruling that the evidence before the court did not clearly show that the inmates were at risk of serious harm, considering the MDC’s virus response, or that the prison did not care enough to shield them from that risk.

Meanwhile, last Thursday, a Massachusetts district court dealt a blow to the inmate habeas corpus/8th Amendment action against FMC Devens. The court held that the action – while calling itself a habeas corpus petition – was really a suit about prison conditions subject to the Prison Litigation Reform Act. The plaintiffs were given until the end of this week to show compliance with the PLRA, which mandates exhaustion of BOP administrative remedies as a jurisdictional condition. This holding conflicts with the 6th Circuit’s Wilson holding of three days before.

Lose200615The North Carolina habeas corpus case against FCC Butner likewise suffered a setback on Thursday, when the Eastern District of North Carolina federal court denied a preliminary injunction. Like the 6th Circuit in the Elkton case, the district court ruled that while the inmate plaintiffs met the objective prong of the deliberate indifference showing, by showing that COVID-19 “poses significant health risks to both the world and community at large” and that the “disease’s uncontrolled spread within FCC Butner therefore presents a substantial risk of serious or substantial physical injury resulting from the challenged conditions,” they had not shown that the BOP was ignoring the spread of the illness.”

Chunn v. Edge, Case No. 20-cv-1590, 2020 U.S. Dist. LEXIS 100930 (E.D.N.Y., June 9, 2020)

Grinis v. Spaulding, Case No. 1:20-cv-10738-GAO, 2020 U.S. Dist. LEXIS 103251 (D.Mass., June 11, 2020)

Hallinan v. Scarantino, Case No. 5:20hc2088, 2020 U.S. Dist. LEXIS 103409 (E.D.N.C., June 11, 2020)

– Thomas L. Root

No COVID-19 Curve Flattening in the BOP – Update for June 9, 2020

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

COVID-19 ROUNDUP

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

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

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

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

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

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

COVID joints200609

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

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

That reconsideration motion is pending.

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

Inmate deaths200609

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

– Thomas L. Root

‘Everything’s Great, Nothing to See Here, Folks,’ in BOP COVID-19 Response – Update for June 3, 2020

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

WHACK-A-MOLE

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

whack200602

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

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

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

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

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

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

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

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

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

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

BOPgraph200603

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

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

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

BOPMeddir200603

Oops.

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

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

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

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

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

– Thomas L. Root

Are Some CARES Act Inmates More Equal That Others? – Update for May 28, 2020

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

MEDIA, ADVOCACY GROUPS CALL OUT BOP ‘CRUEL INDIFFERENCE”

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

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

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

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

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

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

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

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

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

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

compassion160124

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

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

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

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

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

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

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

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

– Thomas L. Root

BOP Misses a Base, and SCOTUS Calls the Agency Out – Update for May 27, 2020

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BUT WAIT, THERE’S MORE…

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Yesterday, the Supremes agreed, but with a caveat:

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

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

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

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

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

– Thomas L. Root

Hoping the Caboose Stays Attached to the Train – Update for May 18, 2020

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

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

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

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

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

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

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

drno200518The HEROES Act seeks to solve the BOP’s unfortunate predisposition to read any grant of statutory discretion to be the right to say “no, no and hell, no!” by providing that the Bureau shall (not may but shall) send to home confinement anyone who is 50 or over, is within 12 months of release, or has a list of COVID-19 risk conditions. Those include pregnancy, heart disease, asthma, diabetes, HIV, cancer, sickle-cell anemia, respiratory problems or immune system weaknesses. The only exception are people determined by clear and convincing evidence to pose a specific and substantial risk of bodily injury to or to use violent force against another person.

What’s more, courts would be required to reduce sentences for people unless the government can show by clear and convincing evidence that the defendant poses a risk of “serious, imminent injury” to an identifiable person.

The Act also incorporates a reduction of the elderly offender home detention program sentence requirement (the subject of a separate bill that has already passed the House, H.R. 4018) to two-thirds of the sentence reduced by good time, instead of the current two-thirds of the whole sentence. This would make an elderly offender doing a 120-month sentence eligible for home confinement at 68 months rather than 80 months.

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

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

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

H.R. 6800, HEROES Act of 2020

– Thomas L. Root

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

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

MIRACULOUS DOINGS AT THE BOP

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

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

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

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

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

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

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

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

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

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

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

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

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

– Thomas L. Root

BOP Ponies Up Some (Questionable?) Private Prison COVID-19 Numbers – Update for May 12, 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 STARTS REPORTING COVID-19 IN PRIVATE PRISONS, BUT QUESTIONS REMAIN

numbers160704After a letter from 41 advocacy groups and 55 families of inmates held at private prison North Lake CI, Baldwin, Michigan – all of them aliens convicted of federal crimes – the Bureau of Prisons has finally started providing some summary figures for federal inmates in private prisons suffering from COVID-19.

The letter, sent last week to Attorney General William Barr and BOP Director Michael Carvajal, accused North Lake operator GEO Group and the BOP of opacity as to COVID-19 at the facility:

Despite its status as a federal facility operating under the authority of the BOP, and despite GEO’s knowledge of positive test results among staff since the first week of April, the North Lake Correctional Facility has never appeared on [the BOP COVID-19 map]. Only daily requests from journalists, addressed first to the GEO Group and then to the Michigan Department of Health and Human Services, have yielded any results. Precise figures for incarcerated people who have tested positive remain unavailable. Families continue to search for any information, while the risks facing the more than 1,500 people held at this facility, where social distancing is out of the question, grow more severe every day.

The BOP first posted information on the private prisons last Friday, reporting 66 active COVID-19 cases at five facilities. North Lake reported 18. As of last night, the number had risen to 82 active cases. North Lake still reported 18.

Critics complain that the report is not enough. University of North Carolina professor Lauren Brinkley-Rubinstein, who is tracking  COVID-19 in state and federal prisons, said, “You cannot convince me that there are only 110 cases in these prisons. It’s impossible to understand what is going on at the facilities.”

Two of the private facilities, Great Plains CI in Oklahoma (27 cases) and Rivers CI in North Carolina (18 cases), qualify as COVID-19 “clusters” under CDC guidelines. States that have responded to prison clusters with comprehensive testing have found that a majority of inmates test positive for coronavirus.

numbers180327The Professor is right: the math does not work. According to daily COVID-19 data provided by Michigan’s Dept. of Health and Human Services, Michigan’s two federal prisons have 110 prisoner cases as of last Saturday. DHHS does not provide a breakdown, but on Saturday, BOP reported that FCI Milan had 14 inmates with COVID-19. If the Milan number is right, then North Lake 90 infected inmates. If the North Lake number is right, the Milan’s number is wrong. Perhaps both are undercounts.

BOP, COVID-19 in Private Prisons (May 10, 2020)

Michigan Advance, ‘It’s hell’: COVID-19 concerns grow at federal immigrant prison in Baldwin (May 10, 2020)

Letter to Attorney General William J. Barr (May 8, 2020)

The Marshall Project, Why Did It Take the Feds Weeks to Report COVID-19 Cases In Privately Run Prisons? (May 8, 2020)

– Thomas L. Root

BOP’s Coronavirus Toll Keeps Climbing – Update for May 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.

EVERYTHING’S UNDER CONTROL, BUT THE COUNT CLIMBS…

control200511The Bureau of Prison’s toll of inmates infected with coronavirus continued its meteoric climb last week, increasing 71% from 1,926 last Sunday night to 3,385 as of 5 p.m. yesterday. Six weeks into the BOP’s execution of its guidance memos, pandemic plans for preparedness, daily briefings and “comprehensive management approach for oversight of the situation,” inmates are dying of COVID-19 at a rate of better than one a day. The death toll today stands at 48.

At the Lompoc, California, facilities, the number of inmates with COVID-19 shot up to 842 this week, making it the largest federal prison outbreak. Lompoc surpassed FCI Terminal Island, California, in the nation, where 693 inmates have contracted the virus.

Nearly 70% of the FCI Lompoc inmates tested thus far have been positive, a number that exploded by more than 300 in recent days, officials said Friday. FCI Lompoc and Terminal Island now account for about 47% of all the federal inmates who have tested positive nationwide. Both prisons have done widespread testing of hundreds of inmates even without symptoms.

At a neighboring Lompoc medium-security prison on the same grounds, 31 inmates and 14 staff have become infected, officials said. Two Lompoc Medium inmates have died after contracting the virus.

Santa Barbara County Supervisor Gregg Hart on Friday expressed dismay with the BOP’s cooperation with the County. “We have been consistently rebuffed by prison authorities,” he said. FCI Lompoc accounted for 310 of the 311 new coronavirus cases in Santa Barbara County last Friday.

Senator Kamala Harris (D-California) telephoned the Terminal Island warden last week to demand to know how the virus rampaged through that facility. KCAL-TV, Los Angeles, reported that Harris told Warden Felicia Ponce she thought the institution was unprepared for the outbreak and that the warden should be pushing to release low-security inmates to home confinement. KCAL said Harris convinced the warden to agree to allow inmates to place phone calls, something that hasn’t been allowed since the outbreak began.

Meanwhile, the BOP announced that a 20-bed temporary hospital care unit has been built in a vacant Lompoc factory. The facility, planning for which started April 10, opened last Wednesday.

BOPPAO200511The BOP reported 619 active cases at FMC Fort Worth as of yesterday, “but they won’t share how many total cases they’ve had or how many of the 1,472 inmates are being tested,” according to WFAA-TV, Dallas. The prison recently added outdoor tents with room to separate 123 inmates, but the TV station said “it’s unclear if they’re using it.”

Last Wednesday, the BOP announced in plans to “substantially expand testing starting at BOP detention and quarantine sites,” using test instruments obtained from the US Dept of Health and Human Services. Three quarantine sites already have one machine each, which can do four tests an hour: FCI Gilmer, West Virginia; FTC Oklahoma City; and FCC Yazoo, Mississippi.

The Bureau said its testing protocols include that (1) inmates who have a negative test result and are asymptomatic will be placed in quarantine for a 14-day period; (2) inmates who have a positive test result but are asymptomatic, will be placed in isolation; (3) inmates who are symptomatic are placed in isolation prior to testing and will be immediately tested; and (4) inmates who have a Negative test result but are symptomatic will be placed in isolation.

On the litigation front, the judge in the ACLU case against FMC Devens last Friday denied the inmate plaintiffs a preliminary injunction ordering the release of inmates. The judge ruled that the plaintiffs had not shown the would succeed on the merits, because “both the BOP and FMC Devens have made significant changes in operations in response to COVID-19.” The judge wrote, “These affirmative steps may or may not be the best possible response to the threat of COVID-19 within the institution, but they undermine an argument that the respondents have been actionably deliberately indifferent to the health risks of inmates.”

But during a sentencing last Tuesday, a Southern District of New York federal judge blasted Attorney General William Barr’s failure to improve conditions at BOP facilities around the country. In giving a bank fraud defendant time served for the 15 months he had spent in jail awaiting trial, the Judge called MDC Brooklyn’s failures during the coronavirus crisis “very serious” but “not surprising,” noting that

to my knowledge, there have been no forthcoming serious reviews of the living conditions at either the MCC or the MDC, which are only many times compounded by this coronavirus that is plaguing the country, but in particular, the country’s prisons. It is an outrage, I have to say, and I’m very disappointed that the Attorney General has not followed through on making a thorough investigation of conditions that those of us in the business, as it were, are all too familiar with, and more importantly, has not implemented appropriate changes.

Last Friday, the wardens of those prisons told the Eastern District of New York that they had tested only 24 inmates in the last six weeks, out of over 2,400 in the two facilities. Eleven of those tests were positive.

taskforce200511The inmate plaintiffs in the FCI Elkton case asked Norther District of Ohio Judge Gwin to enforce his prior order that the facility transfer or release the 837 vulnerable inmates identified in the Warden’s filing two weeks ago. Complaining that Elkton had released none of the identified inmates, the plaintiffs wrote, “of the 837 known subclass members – a number that is known to be underinclusive – Respondents have approved six people, or 0.7% of the subclass, for some form of release. That is equal to the number that had already been approved for home confinement transfers before Respondents answered the Petition in this case. Respondents have not, in other words, stepped up their pace in response to this Court’s Order.”

“Instead,” the plaintiffs argued, “they appear to be applying a set of unattainable filtering criteria. The reasoning for each rejection remains known only to Respondents, as they refuse to answer discovery about the conditional class. Across multiple cases, the BOP has taken contradictory and shifting views on what criteria apply for home confinement, for example.”

In the FCI Danbury case, the inmate petitioners are awaiting a Connecticut federal judge’s decision on their preliminary injunction demand. Meanwhile, the New Jersey ACLU has sued FCI Fort Dix, demanding release of medically vulnerable inmates to limit the prison’s population, and asking that the prison adopt the Centers for Disease Control guidance “regarding testing, medical isolation, quarantine, and social distancing for those who remain, to ensure constitutionally-compliant custody.”

If the prison does not do that ACLU-NJ Legal Director Jeanne LoCicero said in a statement, “FCI Fort Dix is speeding toward a public health catastrophe.” The BOP reported yesterday that 31 FCI Ft. Dix inmates have COVID-19.

Los Angeles Times, 70% of inmates test positive for coronavirus at Lompoc federal prison (May 9)

San Jose Mercury-News, 3 California prison inmates die from COVID-19 complications (May 7)

KCAL-TV, Families Push For Inmates At Terminal Island To Be Released Due To COVID Outbreak (May 8)

BOP, Hospital Care Unit at FCC Lompoc (May 4)

BOP, Bureau of Prisons To Expand Rapid Testing Capabilities (May 7)

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

New York Daily News, Judge on Jeffrey Epstein case rips AG William Barr, saying his failure to fix Bureau of Prisons is ‘an outrage’ (May 6)

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

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

Chunn v. Edge, Case No. 1:20cv1590 (E.D.N.Y.)

Letter to Judge Mauskopf in response to Adm Order 2020-14 (May 7)

NJ.com, N.J. federal prison is becoming a ‘deathtrap,’ ACLU says, seeking release of vulnerable inmates (May 4)

– Thomas L. Root