Tag Archives: COVID

Congress Moves Up End of CARES Act – Update for April 3, 2023

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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.

CARES ACT END NEARER THAN WE THOUGHT

Under Congressional pressure, in late January, President Joe Biden announced he would end the national COVID emergency on May 11th. Last week, the Senate made it clear to Biden that the emergency will end when Congress – not Joe – says it does.

endisnear230403In February, the House voted 229-197 to terminate the COVID-19 pandemic national emergency order immediately. Last week, the Senate agreed by a 68-23 vote that the emergency, which Biden extended in January, should end.

An Administration spokesman told Roll Call that “the President strongly opposes H.J. Res. 7, and the administration is planning to wind down the COVID national emergency and public health emergency on May 11….” However, “if this bill comes to [Biden’s] desk… he will sign it.”

Had the emergency expired on May 11, the Bureau of Prisons’ CARES Act authority to place prisoners in home confinement would have ended 30 days later, or on June 10. But with the emergency to expire as soon as today, BOP home confinement authority could end as early as Wednesday, May 3.

BOP CARES Act authority lasts during the “covered emergency period,” which the Act defines as “the period beginning on the date on which the President declared a national emergency under the National Emergencies Act… and ending on the date that is 30 days after the date on which the national emergency declaration terminates.”

The BOP previously promised not to slow CARES Act home confinement placement as the covered emergency period expired. However, there seems to be a marked increase in unexplained denials by Regional Residential Managers, many apparently resulting from the BOP’s current policy of soliciting the opinion of the same US Attorney responsible for convicting the prisoner to begin with.

CARESEnd230131Writing in Forbes, Walter Pavlo said a prisoner told him that the BOP “is responding to inmates completely contrary to how they’ve responded to you.” Pavlo notes that “for all of the CARES Act successes, a review of the program, which will ultimately occur, will assess the equity with which the BOP used its authority. Many prisoners who were approved for CARES Act have told me that they received a denial but no real explanation for that denial. Others, with the support of a case manager and warden, were denied by Central Office, most likely from interference from prosecutors who have a renewed interest in keeping prisoners in institutions for as long as possible.”

The time for a post-mortem will come soon enough, perhaps as soon as 30 days from now. For now, Congress has succeeded in advancing the timetable by maybe 40 days.

The New Testament quotes Jesus as telling Judas, “What thou doest, do quickly.”  Good advice for anyone still in the CARES Act pipeline.

Roll Call, Senate votes to overturn COVID-19 national emergency order (March 29, 2023)

The Hill, Biden declines to veto GOP-led measure to end COVID-19 emergency March 29, 2023)

Forbes, End Of CARES Act Home Confinement Is Near For Many Federal Prisoners (March 29, 2023)

– Thomas L. Root

DOJ Confirms: BOP COVID Numbers Were Wacky – Update for March 29, 2023

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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.

IG REPORT ON BOP COVID RESPONSE FINDS NUMBERS WERE JUST AS FUNNY AS EVERYONE SAID THEY WERE

numbers180327The Dept of Justice Office of Inspector General released a report last week on the BOP’s COVID response, containing little of any surprise to those who lived through it (especially when it came to the Bureau’s incomplete and misleading daily COVID data).

A common complaint by the media (including this blog) during the pandemic related to the BOP’s manipulation of COVID numbers to make the pandemic look less pervasive in the prison system. The BOP reported on the total number of inmates who had tested positive for COVID at a given institution and system-wide, but sometimes the number actually fell from day to day. It turned out the BOP would deduct from the total inmates who had been released, as though their COVID cases never counted because they had never been there.

Complaints at the time that the BOP was cooking the books fell on deaf ears. But now, the IG has placed its seal of disapproval on the BOP’s voodoo medical accounting:

[BOP COVID] active case counts do not include inmates or staff who recovered or died, and the recovered case counts do not include inmates or staff who die, inmates who have subsequently been released from BOP custody, or staff who have left BOP employment. These omissions mean that the BOP’s publicly posted data does not represent the full extent of cumulative COVID-19 cases among inmates and staff over the course of the pandemic. Further, the BOP website does not mention that the staff and inmate recovery data presented excludes inmates who left BOP custody or staff who left BOP employment, which could lead stakeholders to draw incorrect conclusions about the BOP’s data.

crazynumbers200519The IG noted that “similar issues exist with the BOP’s publicly posted data on testing, which also includes only inmates currently in BOP custody” and which omitted many local tests. BOP vaccination data was also flawed: “BOP does not publish data that allows stakeholders to see the proportion of vaccinated individuals at any of the facilities, as the published data displays only the cumulative number of BOP-administered vaccinations completed at each facility.”

In fact, this blog noted that the BOP’s misleading cumulative numbers had some facilities showing that well more than 100% of the inmate population had been vaccinated. The IG dryly observed that such reporting “could lead stakeholders to draw incorrect conclusions.”

No kidding.

The Inspector General also criticized the BOP’s opaque communications on CARES Act home confinement. The Report “observed that the BOP’s communication with the public regarding home confinement only restated the criteria in the Attorney General’s memoranda without clarifying them in plainer language or describing how the BOP was interpreting or implementing the criteria. For example, while the BOP provided a Frequently Asked Questions section on home confinement on its public website during the pandemic, the section did not mention the additional time-served criteria the BOP was using to determine eligibility for home confinement. Clearly stating to the public how and why the BOP was implementing and prioritizing its expanded home confinement authorities could have helped the BOP be more transparent with inmates and other stakeholders at a time of high stress and uncertainty.”

DOJ Inspector General, Capstone Review of the Federal Bureau of Prisons’ Response to the Coronavirus Disease 2019 Pandemic (March 20, 2023)

Govt Executive, Here’s How the Prisons Agency Fared During the Pandemic (March 21, 2023)

– Thomas L. Root

Here Comes the Easter Bunny – Update for February 28, 2023

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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 EASTER BUNNY’S WORKING FOR THE BOP


bunny230228I still get asked several times a week about the persistent rumor that the Bureau of Prisons or Joe Biden or Congress or someone is going to give every inmate a time cut because incarceration during COVID was so miserable.

The “someone” is probably the Easter Bunny. I hear that the BOP would be asking the EB to deliver the time cut to every inmate in a nice basket with green plastic grass, jelly beans and a big chocolate rabbit.  Except the BOP cannot…

Because there ain’t no Easter Bunny. And there ain’t no COVID time cut, either. Such a cut has never been proposed, never been debated, and is never happening.

Harder to believe than the part about the Easter Bunny is the part about the BOP having any compassion for inmates… and that includes inmates who have been sexually assaulted by the BOP’s own employees. The New York Times reported last Wednesday that the BOP has rejected the first inmate request that it recommend compassionate release because she had been sexually abused by male employees at FCI Dublin. The reason is sobering.

forcedsex161202Last fall, Deputy Attorney General Lisa O. Monaco pressed BOP officials to encourage inmates who have been assaulted by prison employees and might qualify for compassionate release program to apply. Monaco told FAMM that she had ordered the new BOP Director Colette S. Peters, to “review whether BOP’s policy regarding compassionate release should be modified to accommodate female prisoners who had been assaulted by federal employees,” according to the Times.

Ms. Peters has said she has begun to consider requests from inmates who have been abused and are not deemed to be threats to the community if they are granted their release.

In late January, the BOP general counsel denied an application filed by a middle-aged woman who claimed her experience made her eligible for compassionate release. She is among a number of women who have detailed pervasive misconduct during their incarceration. This case – “the first of its kind to make its way through the system — is seen by prisoners’ rights groups as a key test of the department’s commitment to use so-called compassionate release protocols for victims of abuse,” the Times said.

The Times quoted the BOP general counsel as acknowledging that the inmate’s “assertions of being groped and forced to disrobe by male staff members were ‘extremely concerning,’ but described her documentation of those claims as insufficient.”

The Times said that BOP officials familiar with the case have privately said they do not dispute her allegations and think the inmate’s release would not pose a public safety threat.

easterbunny230228The BOP characterized the rejection as “temporary.” The Times said the rejection “reflect[s] a broader struggle by the Justice Department to free inmates abused in federal custody, when appropriate.” 

No doubt the Easter Bunny will be bringing the inmate her approval with the jelly beans.  Except that there is no Easter Bunny. 

New York Times, Justice Dept. Struggles to Carry Out Early Release Program for Abused Inmates (February 22, 2023)

– Thomas L. Root

BOP Agrees to Do What It Always Should Have Been Doing – Update for November 4, 2022

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

LOMPOC COVID CLASS ACTION SUIT SETTLES

release161117The two-year-old class action lawsuit against the Federal prison complex at Lompac, California, over COVID mismanagement ended last week with a stipulation by the parties that the Federal Bureau of Prisons will transfer eligible inmate class members to CARES Act home confinement in accordance with an earlier preliminary injunction, with substantial weight given to COVID-19 risk factors and without denying anyone based solely on the amount of time served or the nature of a prior offense.

The BOP also agreed to perform daily symptoms checks for people placed in quarantine, screen inmate class members working in communal spaces for COVID-19 symptoms, and ensure that those isolated in the SHU are treated differently from those housed there for punitive reasons, including providing access to clocks, radio, reading materials, personal property, and commissary.

The inmate class lawyers, working pro bono from the LA office of the 340-lawyer firm Manatt, Phelps and Phillips, argued that the nature of overcrowded prison settings prevented social distancing or taking other recommended COVID precautions. They argued the BOP had failed to follow the Attorney General’s order to maximize the release of at-risk individuals to home confinement, thus violating their 8th Amendment rights.

As a result, the lawsuit alleged, the virus spread to 60% of those in custody, over 1,200 people at the overcrowded facility, The suit sought declaratory and injunctive relief for improved conditions of confinement, as well as a writ of habeas corpus for release.

deadcovid210914The Court issued a preliminary injunction in July 2020 requiring the BOP to immediately review a provisional class of people over 50 years old or who had underlying COVID morbidity health conditions for home confinement and to promptly transfer eligible people to their homes. Subsequent orders prohibited the BOP from denying people home confinement based solely on the basis of the amount of time served or the nature of a prior offense. About 250 people have been transferred to CARES Act home confinement from Lompoc since the preliminary injunction was issued.

In a related report, the Santa Barbara Independent reported last week that the estate of Mohamed Yusuf, who was serving the final year of a 132-month sentence at USP Lompoc when he died of COVID-19, is pursuing a wrongful death action against the prison for allegedly allowing him to die of COVID without providing proper medical care.

Yusuf was 37 years old, married with three children, and in “sturdy health” when he tested positive for the coronavirus on May 7, 2020, the lawsuit states. At the time, in the early days of the pandemic, the prison complex was experiencing a massive outbreak that ultimately killed five inmates and infected more than 1,200, more than any other BOP facility. The suit alleges that “while correctional staff knew of the Decedent’s dire need for help, they did not provide prompt and appropriate care and assistance, and some joked about the matter, going so far as to call the Decedent a ‘faker’ and a ‘wimp’.”

covidtest200420Why does any of this matter? The nation is bracing for another wave of COVID-19 just as a surge in new Omicron subvariants has raised concern among scientists. The Centers for Disease Control and Prevention released data last week showing that BQ.1 and its brother BQ.1.1 now account for over 10% of US cases, while BF.7 accounts for another 5%.

“Within a few weeks, things could look upside down,” according to John Swartzberg, an infectious disease and vaccinology expert at the University of California, Berkeley. If the subvariants keep spreading at the same rate, they could overtake BA.5 as the nation’s most prevalent SARS-CoV-2 strain. Globally, mutations also include contenders such as the Omicron subvariant XBB, which is suspected of being able to evade vaccines.

Just this morning, The New York Times reported that the recent decline in Covid-19 cases across the United States has started to level off. “Coronavirus-related hospitalizations are ticking up in a number of states, including Arizona, Indiana, Illinois, Nevada, Nebraska, Oklahoma, South Dakota and Wisconsin. And there have been a variety of unnerving headlines about the immune evasion and increased transmissibility of the next round of coronavirus subvariants.”

BOP, Lompoc, COVIYesterday, White House chief medical advisor Dr. Anthony Fauci said the COVID deaths, which average more than 2,600 per week, remain too high. At the same time, he said, the new omicron variants are knocking out key tools used to protect the most vulnerable.

As of yesterday, the BOP reported that COVID was present in 70% of its institutions, with 238 inmates and 318 staff ill with the virus.

Order re Joint Motion for Approval of Settlement, ECF 863, Torres v Milusnic, Case No. 2:20cv4450 (C.D.Cal., October 11, 2022)

Manatt, Manatt Secures Settlement in Pro Bono Class Action Lawsuit For Prison Health and Safety (October 25, 2022)

Santa Barbara Independent, Estate of Terrorist Killed by COVID in Lompoc Prison Sues Warden, Staff (October 26, 2022)

National Geographic, Why Omicron subvariants BQ.1 and BQ.1.1 are poised to take over in the U.S. (October 18, 2022)

The New York Times, New Covid Variants Are Circulating. Here’s What to Know. (November 4, 2022)

CNBC, U.S. faces pandemic crossroads with Covid deaths still too high and new omicron variants emerging, Fauci says (November 3, 2022)

– Thomas L. Root

COVID Winter Surge: Will It Happen? – Update for October 21, 2022

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

COVID’S IS NOT GOING AWAY

covidneverend220627COVID is such old news. President Biden says the pandemic’s over. The Bureau of Prisons’ notoriously unreliable numbers say that as of last Friday, only 160 inmates and 367 staff have the virus (although it’s present in 73% of BOP facilities). Nationally, confirmed cases are down 25% in the last two weeks.

Except… In the UK, infections from highly mutated subvariant BQ.1.1 are doubling every week — a rate of growth that far exceeds other leading subvariants. In the U.S., BQ.1.1 is spreading twice as fast as its cousin subvariant BA.2.75.2. In fact, BQ.1.1 seems to be the first form of COVID against which antibody therapies don’t work at all.

What’s more, last week a new subvariant called XBB began spreading in Singapore. New COVID-19 cases there more than doubled in a day, from 4,700 on Monday to 11,700 last Tuesday. The same subvariant just appeared in Hong Kong, too.

XBB is a highly mutated descendant of the Omicron variant that drove a record wave of infections last winter (including almost 10,000 BOP cases at one time). XBB is more contagious than any previous variant and, like BQ.1.1, evades the antibodies from monoclonal therapies. It is unclear whether the newest batch of bivalent booster shots will work against the XBB variant.

The Washington Post reports, “This time, it’s unlikely we will be barraged with a new collection of Greek alphabet variants. Instead, one or more of the multiple versions of the omicron variant that keep popping up could drive the next wave. They are different flavors of omicron, but eerily alike — adorned with a similar combination of mutations. Each new subvariant seems to outdo the last in its ability to dodge immune defenses.”

inmateCOVIDrights220124A report published Wednesday in the New England Journal of Medicine suggests that the subvariant, called BA.4.6, could drive reinfections. “It’s astonishing to see how the virus keeps mutating at such a rapid rate,” said study author Dr. Dan Barouch, director of the Center for Virology and Vaccine Research at the Beth Israel Deaconess Medical Center in Boston. “This is essentially viral evolution on steroids.”

“This suggests that omicron continues to evolve and continues to evolve in a way that becomes more transmissible and more effective at escaping vaccines and immune responses,” he said. “The results are actually a harbinger to new variants that might be even more worrisome.”

Two new COVID-19 variants that quietly emerged on the scene over the last few weeks — ones that Dr. Anthony Fauci has described as “pretty troublesome” — are becoming increasingly prevalent in the New York area and stoking fresh concerns as the nation braces for yet another potential winter surge, the latest CDC data show.

The CDC estimates that variants B.Q.1 and B.Q.1.1 now could account for up to 36.6% of New York area cases, which is nearly double the highest-range estimate at the national level.

prisoners221021These reasons may be why the Dept of Health and Human Services renewed the COVID-19 public health emergency last Thursday for another 90 days at least. This is not the emergency under the National Emergencies Act that authorizes CARES Act home confinement, which currently ends on February 28, 2023 (although experts believe that the NEA emergency will be extended, like it has been twice before). According to Government Executive, “[F]ederal public health officials are bracing for a possible winter surge in COVID-19 cases and a few weeks after President Biden said in a “60 Minutes interview “the pandemic is over.”

This suggests that CARES Act home confinement, compassionate release grants, and – unfortunately – lockdowns due to COVID may not be over yet.

Today, Omicron subvariants reflect a ‘viral evolution on steroids’ (October 19, 2022)

Washington Post, XBB, BQ.1.1, BA.2.75.2 — a variant swarm could fuel a winter surge (October 18, 2022)

National Geographic, Coronavirus in the U.S.: Where cases are growing and declining (October 15, 2022)

Daily Beast, This Deadly COVID Twist Is Like Nothing We’ve Seen Before (October 11, 2022)

Bloomberg, World Faces New Threats From Fast-Mutating Omicron Variants (October 12, 2022)

NJ.com, XBB variant: What is known so far about the newest COVID variant (October 13, 2022)

Government Executive, Coronavirus Roundup: The Biden Administration Renews the Public Health Emergency for COVID-19 (October 14, 2022)

– Thomas L. Root

COVID Emergency Too Good To End? – Update for September 30, 2022

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

WHO CARES ABOUT THE END OF THE PANDEMIC?

President Biden, a man who always carefully weighs his words, told CBS last week that “the pandemic is over. We still have a problem with Covid. We’re still doing a lot of work on it. It’s — but the pandemic is over.”

deadcovid210914Last week, Sen Roger Marshall (R-KS), who is an obstetrician/ gynecologist, introduced a resolution that would end the national emergency first declared by President Donald J. Trump in March 2020. President Biden extended the national emergency in February 2021 and again in February 2022. The resolution has virtually no chance of passing both houses of Congress.

And at yesterday’s Senate Judiciary Committee oversight hearing, Bureau of Prisons Director Colette S. Peters was braced by Sen Tom Cotton (R-AR), a bomb-thrower entranced by the sound of his own voice, who took time out from his off-topic argument with Sen Cory Booker (D-NJ) about who hated fentanyl more to demand that Peters admit that the pandemic was over. Director Peters wisely demurred.

So is the pandemic over? And does that really matter?

cotton171226Under the National Emergencies Act, a national emergency continues until (1) the president does not issue an annual continuation notice, (2) the president terminates it, or (3) a joint resolution of Congress terminates it. Because Biden most recently issued an annual continuation notice as of March 1, 2022, the national emergency will end on February 28, 2023 (absent additional action to extend it further or terminate it early).

All of this matters because CARES Act authority granted to the Bureau of Prisons to place prisoners on home confinement ends 30 days after the pandemic national emergency expires.

(Note: There are two emergencies out there.  One is the national emergency declared under the National Emergencies Act.  The other is the Covid-19 public health emergency, declared in January 2020 by the Health and Human Services Secretary and last extended in July 2022 for another 90 days. With all due respect to the coronavirus, the one we care about is the National Emergencies Act emergency. The Covid-19 public health emergency has no effect on Sec 12003 of the CARES Act).

The inmate rumor du jour for months has been that CARES Act placement has ended, will end imminently, or will end in February 2023. None of this is right, unless Biden declares the national emergency to be at an end. As of March 2020, 60 national emergencies had been declared since the National Emergencies Act was enacted in 1976. Over half of those have been renewed annually. The longest continuing national emergency dates back to Iran hostage crisis, 43 years ago.

But will the national emergency end in February 2023? The Wall Street Journal  last week suggested it would not:

moneyhum170419The reason is almost certainly money. [The CARES Act] enables the government to hand out billions of dollars in welfare benefits to millions of people as long as the emergency is in effect. This includes more generous food stamps and a restriction on state work requirements. It also limits states from removing from their Medicaid rolls individuals who are otherwise no longer financially eligible… Only weeks ago the Administration used a separate national emergency declaration related to the pandemic to legally justify canceling some $500 billion in student debt… Mr. Biden seems to want it both ways. He wants to reassure Americans tired of restrictions on their way of life that the pandemic is over and they can get on with their lives. But he wants to retain the official emergency so he can continue to expand the welfare state and force states to comply.

A final note.  Sen Richard Durbin, chairman of the Judiciary Committee, opened yesterday’s BOP oversight hearing by complaining, among other things, that the BOP had underused CARES Act and compassionate release authority.  Notwithstanding Sen. Cotton’s wacky views that the CARES Act has murderers and rapists again roaming our streets, there does not seem to be a lot of sentiment that CARES Act home confinement should end too soon.

CNN, Biden: ‘The pandemic is over’ (September 18, 2022)

Medical Economics, Senator moves to end COVID-19 pandemic national emergency (September 23, 2022)

Morgan Lewis, Preparing for the End of Covid-19 Emergency Periods: To-Dos for Plan Sponsors and Administrator (July 20, 2022)

Wall Street Journal, Is the Pandemic ‘Over,’ or Not? (September 19, 2022)

– Thomas L. Root

Peters Due to be Sworn In This Morning, Honeymoon’s Due to End This Afternoon – Update for August 2, 2022

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change220802Incoming BOP Director Colette Peters will have her choice of fires to put out after today’s swearing in. What she will not have is much of a honeymoon in which to do so.

At last week’s hearings, Sen. Jon Ossoff (D-GA) said that with Carvajal departing, and a new director coming in, change at the Bureau of Prison needs to happen and it needs to happen now.

With a fall COVID surge anticipated, she might want to look first at the BOP’s COVID management. Others certainly are. At last week’s Subcommittee hearings, Sen Alex Padilla (D-CA) said his office has received reports that FCI Mendota had not been following COVID-19 protocols, leading to frequent outbreaks at the facility.

Padilla and Sen. Dianne Feinstein (D-CA) sent the Dept of Justice a letter in April asking about the lack of COVID-19 safety precautions, but did not receive an adequate response. In response to Carvajal’s assurance that the BOP “takes these allegations seriously,” Padilla said, “We sent you a letter saying that we’re hearing that protocols are not being followed. We communicated to you months ago that we understand they aren’t being followed.”

Fourteen other senators last week demanded that the BOP explain its scant use of Covid-19 therapeutics.

The letter is based on press reports that the BOP used just a fraction of the COVID-19 drugs allotted by the federal government. It urges Bureau leadership to revamp its approach toward Covid-19 testing to catch more infections that could benefit from these drugs (which need to be given early in a person’s illness).

Druck“The experience of the pandemic for the federally incarcerated population remains starkly worse than for non-incarcerated individuals,” the letter said. “This discrepancy can only be addressed through affirmative, comprehensive changes from the Bureau of Prisons … to improve the availability of COVID-19 vaccines, testing, and therapeutics. We write to urge you to make those improvements as soon as possible.”

The Dept of Health and Human Services has reported that BOP consistently declines additional COVID-19 drugs. “We have… reached out multiple times to BOP asking them why they do not want their allocations offered by HHS. They consistently say they have enough to meet demand/their demand is low,” DHHS wrote in a May 4 email to Congress. Last week’s letter demands information from the BOP by Sep 9, including data on the turnaround time for Covid-19 tests and the policies governing when incarcerated people are tested.

numbers180327As of yesterday, BOP COVID numbers – which are stunningly untrustworthy most of the time – reported 479 inmates and 509 staff with COVID, with COVID in 115 facilities (the most since March 1st). The total number of COVID tests performed on inmates fluctuates inexplicably but suggests no testing being done since January 25th. Peters might want to start by requiring BOP COVID stats to be meaningful.

Florida Phoenix, ‘Stunning, long-term failures’ found in probe of Atlanta penitentiary (July 26, 2022)

Stat, Senators demand answers about federal prisons’ scant use of Covid therapeutics (July 26, 2022)

Letter to Michael Carvajal from Sen Benjamin Cardin (July 25, 2022)

– Thomas L. Root

BOP’s Ship Takes On Water – Update for July 12, 2022

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EDITOR’S NOTE: ARE WE INFLUENTIAL OR WHAT?

Only a couple of hours after we posted this, the Dept. of Justice announced that Colette Peters had been hired as BOP director.  While some may say that this is post hoc, ergo proper hoc reasoning, we’re quite willing to think that Merrick Garland starts his day with LISA’s posts.

BOP’S SHIP SLOWLY SINKS AS SEARCH FOR CAPTAIN SEEMS TO BE STALLED

sinking220712With July 4th, last week was short. Good thing, too, because the Bureau of Prisons probably could not have taken a fifth day of bad news.

First, an Associated Press report on a lawsuit about conditions at FCI Sheridan said that the Oregon Public Defender Lisa Hay alleged in a filing that the BOP turned off water at the Sheridan detention center in order to end refusal by some detainees to eat.

The warden allegedly issued a memo to detainees that “showers are postponed due to continued threats of assault to staff.” The court filing said that temperatures in Sheridan reached 90 degrees when showers were withheld.

Oregon Public Broadcasting said BOP “didn’t answer questions about the memo or whether the water was cut off in an effort to end the hunger strike.”

Conditions inside the federal prison have been the subject of concern since the pandemic took hold in 2020. Hay has in court filings detailed lockdowns that have lasted for days. In other filings, her office has documented poor medical and dental care that has left many suffering.

Meanwhile, in a letter Wednesday to Deputy Attorney General Lisa Monaco, USP Thomson staff and union leaders called for the immediate removal of Warden Thomas Bergami, citing “an abundance of serious incidents” and the mass departure of 60 correctional officers since March.

“Warden Bergami has failed within his position of trust and has placed the staff, inmates and communities at risk,” AFGE Local 4070 President Jonathan Zumkehr wrote. “Attempts to address these issues directly have gone unheeded and even to the extent of being covered up and or distracted from the facts… Managers are blatantly violating laws and refusing to adhere to local agreements, placing the hard-working staff in limbo with ever-changing policies and procedures that have done nothing but set USP Thomson ablaze.”

Bergami has only been at Thomson since March.

The BOP settled two lawsuits last week. One, a 20-year old suit by six people detained after 9/11 at MDC Brooklyn, included a cash payment and letters to each of the plaintiffs from BOP Director Michael Carvajal wrote a letter to each of the men saying the Dept of Justice had determined they were “held in excessively restrictive and unduly harsh conditions of confinement and a number of individuals were physically and verbally abused by certain MDC officers.”

sorry190124“I don’t know that the director of the Bureau of Prisons has ever signed a letter of this nature before to individual clients, so that is unique,” Rachel Meeropol, an attorney for the men, said.

On June 28, the BOP settled the two-year-old FCC Lompoc class action, agreeing “to comply with Attorney General Barr’s March 26 and April 3, 2020 memoranda, the current BOP guidance at the time of each review, and the standards set forth in this Court’s orders when making decisions about a request for home confinement. In addition, the agreement requires Respondents to transfer individuals within one month of the decision granting home confinement and, if the transfer does not occur timely Respondents must provide an explanation of the reasons for the delay.”

The agreement substantially contains the terms previously imposed by the court in an injunction and enforcement orders.

covidneverend220627Last week, the BOP reported two more inmate COVID deaths, an April 21 death at USP Tucson and a May 16 death at Yazoo City Medium. Both men had previously had COVID and been declared to have recovered. The federal prisoner inmate COVID death total now stands at 319 or higher. COVID cases ended the week at 520 (inmates) and 338 (staff), the highest since the beginning of March.

Finally, there seems to be no movement on a new BOP Director since Colette Peters, director of the Oregon prison system, was reported to be a finalist for the post almost a month ago. One would hardly blame her for any second thoughts she might be having.

KGW-TV, Lawyer: People at federal prison in Oregon denied showers amid hunger strike (July 5, 2022)

Corrections1, Prison staff, union call for warden’s removal after ‘abundance of serious incidents’ (July 7, 2022)

Colorado Springs Gazette, Feds settle suit alleging abuse by men detained after 9/11 (July 5, 2022)

Santa Maria Times, Settlement reached in Lompoc prison COVID-19 class action laws (July 7, 2022)

Joint Motion, Torres v Milusnic, Case No 2:20cv4450 (CD Cal)

BOP, Inmate Death at USP Tucson (July 6, 2022)

BOP, Inmate Death at FCI Yazoo City Medium (July 6, 2022)

– Thomas L. Root

Ain’t No Cure For the Summertime COVID Blues – Update for July 5, 2022

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

JUST WHEN YOU THOUGHT IT WAS SAFE TO COME OUT OF YOUR CELL…

FreeFood220705They’re handing out free food samples at Sam’s Club again, a sure sign that COVID is no more.

So perhaps someone can explain why the number of Bureau of Prisons inmates with COVID doubled in the last week to 444, the highest it has been since Match 2, 2022. The number of sick staffers this past week – 358 on Friday – has not been seen since March 15, 2022. A full 100 BOP facilities reported COVID cases on Thursday, a number not seen since March 9.

The troubling reports came as the BOP announced that Monday that three inmate deaths last fall and winter were actually from COVID. Inmate deaths at FCI Bennettsville last October and at both FCI Florence Camp and FCI Otisville last winter were reclassified as COVID, bringing the federal prisoner COVID death toll to at least 319.

Meanwhile, more COVID bad news: A World Health Organization official said last Monday that the more times a person becomes infected with COVID-19, the more likely the person is to contract long-term health effects from the virus.

longcovid220705“The more times you get it, the more likely you are to be unlucky and end up with long COVID — which is the thing that none of us want because it can be so serious,” David Nabarro, a WHO special envoy for COVID-19, said. “It can knock people off their stride for several months.”

Long COVID happens when someone with COVID-19 develops symptoms that linger for an extended period, according to the Centers for Disease Control and Prevention. The CDC says symptoms could last weeks or months, and even go and come back.

The New York Times reported last week that the COVID Omicron subvariants known as BA.4 and BA.5 have together become dominant among new coronavirus cases in the US. As of the week ending June 22, BA.4 made up 15.7% and BA.5 36.6% of COVID cases nationwide. In recent weeks, more than 100,000 new coronavirus cases have been reported each day on average in the United States, the Times said, “a figure that captures only a portion of the true number. Many infections go uncounted in official reports. Some scientists estimate that the current wave of cases is the second-largest of the pandemic.”

COVIDheart200720

New York magazine reported yesterday, “The newest wave of COVID infections and reinfections, fueled by more transmissible subvariants of the Omicron strain including BA.4 and BA.5, continues to grow across the U.S. As countless Americans gather over the July 4 holiday weekend, it’s entirely possible that there are more new daily infections happening in the country than at any other point in the pandemic other than the Omicron wave. And as the worrisome BA.5 subvariant rapidly rises to what will likely be global dominance, the U.S. isn’t the only country experiencing a surge.

Last week, the U.S. test positivity rate — which is now a more reliable indicator of case surges than official case counts — reached a seven-day average of over 15 percent for the first time since February 3.”

BOP, Inmate Death at FCI Bennettsville (June 27, 2022)

BOP, Inmate Death at FCI Florence’s Satellite Camp (June 27, 2022)

BOP, Inmate Death at FCI Otisville (June 27, 2022)

Business Insider, WHO official says the more times a person gets COVID-19, the more likely they are to be ‘unlucky’ and get long COVID (June 27, 2022)

The New York Times, The Omicron subvariants BA.4 and BA.5 have together become dominant in the US, the CDC estimates (June 28, 2022)

New York magazine, The BA.5 COVID Surge Is Here (July 4, 2022)

– Thomas L. Root

DOJ’s Post-CARES Act Rule Proposal Leaves Out The Important Stuff – Update for June 27, 2022

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

DOJ PROPOSES RULE TO GIVE BOP DISCRETION ON ORDERING CARES ACT HOME CONFINEES TO RETURN TO PRISON

nogoingback210208Almost everyone was relieved last December when the Dept of Justice’s Office of Legal Counsel rescinded its Trump-era opinion that people on CARES Act home confinement would not have to return to prison when the COVID-19 emergency ends.

Unfortunately, there was an “easter egg” in that opinion. In a statement that accompanied release of the opinion, Attorney General Merrick Garland said DOJ would issue rules to ensure that those “who in the interests of justice should be given an opportunity to continue transitioning back to society, are not unnecessarily returned to prison.”

At the time, Ohio State Univ law professor Doug Berman said in his Sentencing Law and Policy blog, “I am not sure how that rulemaking process will work, but I am sure the AG statement is hinting (or flat-out saying) that there will still be some in the ‘home confinement cohort’ who may need to worry about eventually heading back to federal prison.”

Last week, the chickens started coming home, but not precisely as the AG suggested. In a Notice Of Proposed Rulemaking (NPRM), the DOJ proposed that after the COVID-19 national emergency ends, the BOP Director would have delegated authority to let “any prisoner placed in home confinement under the CARES Act who is not yet otherwise eligible for home confinement under separate statutory authority to remain in home confinement under the CARES Act for the remainder of her sentence, as the Director determines appropriate.”

arbitrary220627So far, so good. The problem, however, is that the NPRM does not propose the criteria the BOP should use to decide who stays home and who returns. Instead, the NPRM promises that “following the issuance of a final rule, the Bureau will develop, in consultation with the Department, guidance to explain criteria that it will use to make individualized determinations as to whether any inmate placed in home confinement under the CARES Act should be returned to secure custody.”

The devil’s in the details; here, DOJ has apparently decided that the criteria for keeping folks at home will remain opaque to public comment and judicial review. For anyone who lived through the moving targets that were the original CARES Act home confinement criteria in the early days of COVID, this suggests a continuation of an arbitrary and confusing system for returning home confinement people to prison.

The good news is that DOJ – noting that over 4,900 inmates had been placed in home confinement under the CARES Act, with 2,826 of them having release dates over 12 months away – said it intended that CARES Act placement will “for the duration of the covered emergency period.”

covidneverend220627When will the COVID-19 emergency end? Walter Pavlo said last week that while no one knows for sure, “one can bet that it will not be before the mid-term elections in November and could likely extend through another COVID-19/flu season of 2023.” Given that 55% of all national emergencies declared in the last century are still in effect (including six over 25 years old), the end of the COVID-19 emergency probably will not come soon.

Meanwhile, a bit of irony: We reported on May 11th about a lawsuit in Connecticut challenging the removal of an inmate from CARES Act home confinement without a hearing. The government has moved to dismiss the habeas corpus action. A hearing on the dismissal motion set for June 15 was postponed because the government’s attorney was too ill with COVID to attend.

DOJ, Discretion to Continue the Home-Confinement Placements of Federal Prisoners After the COVID-19 Emergency (December 21, 2021)

Sentencing Law and Policy, New OLC opinion memo concluding CARES Act “grants BOP discretion to permit prisoners in extended home confinement to remain there” (December 21, 2021)

DOJ, Statement by Attorney General Merrick B. Garland (December 21, 2021)

DOJ, Home Confinement Under the Coronavirus Aid, Relief, and Economic Security (CARES) Act, 87 FR 36787 (June 21, 2022)

Forbes, Department of Justice Proposes Final Rule to End CARES Act for Home Confinement for Federal Prisoners (June 25, 2022)

Order (ECF 27), Tompkins v. Pullen, Case No 3:22cv339 (D.Conn)

– Thomas L. Root