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Carvajel’s Subcommittee Swan Song – Update for February 7, 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.

BOP DIRECTOR’S FINAL HOUSE OVERSIGHT HEARING LARGELY A MARSHMALLOW FIGHT

Marshmallow220207Bureau of Prisons Director Michael Carvajal dumped numbers on a largely uncritical House Subcommittee on Crime, Terrorism, and Homeland Security last Thursday, in what is likely the retiring Director’s final oversight hearing.

Committee chair Rep. Sheila Jackson-Lee (D-Texas) suggested fireworks to come when she opened the session wondering how the BOP could justify turning down inmates for compassionate release who later died of COVID. But the fireworks were largely a dud, as hard questions about criminal misconduct by BOP staff, lax security, and decrepit facilities – the reasons Associated Press gave for Carvajal’s resignation in the wake of Congressional pressure for his replacement – went unasked.

The Director’s play with numbers went unchallenged as well. His written statement reported that the Bureau has transferred more than 37,000 inmates to community custody, noting parenthetically that only about a quarter of those were transferred pursuant to the authority granted by the CARES Act. In his oral testimony, the Director truncated that to the BOP having “released over or transferred over 37,000 under the CARES Act to home confinement and community placement.”

The BOP has been bandying the 37,000 number about for a long time, used to lull legislators into thinking the agency had vigorously used its CARES Act authority. What it comes down to is that the BOP kept releasing people to halfway house/home confinement as usual but could only find under 7% of BOP inmates in custody who “qualified” for CARES Act placement over a 22-month period. The “qualifications” were those laid down by the Attorney General, with additional gloss (such as the inmate must have served 50% of his or her sentence). That means that 28,000 of that 37,000 number would have gone to halfway house or home confinement under normal end-of-sentence placement, even without the CARES Act.

Maybe the number misdirection doesn’t seem like such a big deal, but it’s emblematic of BOP culture. If the BOP’s professional judgment is that the CARES Act should be no more than the 7% solution, why not tell Congress “we released 9,000 people under the CARES Act, and if you wanted us to release more, you should have written the law differently.” Instead, the BOP leads with the 37,000 number, hoping that Congress doesn’t listen that carefully, and will think the BOP has done much more than it has. It is a tacit admission by the BOP that it knows it has been unreasonably chary in applying the CARES Act, and it hopes Congress doesn’t tumble to it.

pigfly220207Perhaps the next BOP director will be candid enough to own what his agency has done or not done with its authority. (See flying pig).

Carvajal also assured the Subcommittee that the BOP “continue[s] to screen inmates for appropriate placement on CARES Act” and that while the 50%-of-sentence standard is one of the “four hard criteria,” the BOP has “discretion – there usually is a higher-level review if the staff of the institution feels that it is appropriate outside of the CARES Act, we have procedures in place to review cases such as that…”  Call this the Manafort exception. Unfortunately, but for Paul Manafort’s CARES Act release in May 2020 (and former congressman Chaka Fattah in July 2020), the BOP has been steadfast in refusing to waive the 50% rule. It should be called the “who-you-know” exception.

who201229Responding to questions from Rep. Karen Bass (D-California), Carvajal said that 80% of the BOP staff was vaccinated, but only 95,000 out of 135,100 in-custody inmates had gotten the jab. His numbers are way off the BOP’s own website, which reports that 119,500 inmates are vaccinated – 78% – but only 70.4% of the BOP’s 36,739 employees have gotten the shot.

[Note to Mike: it’s easier to fudge the numbers when you’re not simultaneously making the real data available to anyone with a smartphone.]

Rep. Thomas Massie (R-KY) said the BOP had told his staff that 4,738 BOP employees (12.9% of the workforce) had gotten exemptions – mostly religious – from taking the vaccine, and groused that “it’s kind of it’s interesting that the inmates have more rights [to refuse vaccines] than the officers themselves.” No one knows what the Congressman might think if he knew the numbers Director Carvajal had given him were wrong. For what it’s worth, Congressman, if the BOP is getting rid of staff who refuse the vaccine, inmates would happily accept the same fate. 

One of the only tense moments in the hearing came when Rep. Cori Bush (D-MO) braced Carvajal on conditions brought to her attention by the National Council for Incarcerated and Formerly Incarcerated Women and Girls. Bush said:

In these emails, women in federal custody detail horrifying accounts of not being allowed to get out of their beds all day because of COVID lockdowns, being forced to eat expired food, having little to no access to medical services to treat cancers and other underlying conditions, having to pay $2.00 to file a sick complaint. This is all happening under your watch. These are complaints coming from not one or not two facilities but five different facilities, which makes clear that these issues are not isolated… These women cannot hold you accountable, Mr. Carvajal, they cannot, but we can, and I would like to use this opportunity to ask you questions that they cannot directly ask you out of fear of retaliation.

schultz220207The Director responded, “I’m not aware of those particular complaints, but I’m certainly interested in hearing from you and your staff so that we can look into them, because I find that – if that happened – I find it unacceptable.” He assured Bush that “we take all allegations seriously…” Not that I disagree – I would never dispute what the BOP director says – but I have hundreds of emails from inmates who beg to differ.

Carvajal explained to the legislators, “I’d like to stress something – we’re not here for punishment, the taking of their time by the courts and the criminal justice system, that’s the punishment, we’re here to house people that are remanded to our custody and more importantly to prepare them to reenter society, keep them safe while they’re here. We’re not here as punishment, that’s not how we look at this agency.”

The hearing had a few other bumps. Rep. Steve Cohen (D-TN) complained that the BOP “has unfortunately failed to protect the health of those within their custody and their staff from COVID-19 or address chronic understaffing [and] the BOP has also lacked transparency and vigor and implementing important criminal justice reforms such as the First Step Act.”

Jackson-Lee raised the reports filed by epidemiologist Homer Venters, M.D., on MDC Brooklyn and FCC Lompoc. She noted that “his investigation revealed [a] disturbing lack of access to care when a new medical problem is encountered…” Venters noted that at MDC Brooklyn, “it quickly became apparent that not only were many people reporting that their sick call requests, including COVID-19 symptoms, were being ignored, but that the facility was actually destroying their original request which violates basic correctional standards. [T]his is an accountability hearing… these are human beings deserving of respect and dignity, men and women…”

Carvajal said he was “aware of the report, we looked into it, we followed up, I won’t discuss that specific incident, but I will reassure you that each of our institutions has an outpatient health clinic that’s overseen by a board-certified physician and a medical director. We have outside oversight… If there’s a mistake made or something of that nature, we’re going to look into it and do something about it correct the issue.”

potemkin220207He did not mention and the Subcommittee did not note that the BOP’s “follow-up” consisted of vigorously contesting every aspect of Venters’ report in litigation over MDC Brooklyn.

It may not be much of a plan to testify before a subcommittee hoping that the legislators haven’t done their homework. But Director Carvajal seems to have capped his career doing just that, and with some success.

Statement of Michael Carvajal, House Committee on Judiciary (Feb 3, 2022)

Hearing, Oversight of the Federal Bureau of Prisons (Feb 3, 2022)

Fernandez-Rodriguez v. Licon-Vitale, 470 F.Supp.3d 323 (S.D.N.Y. 2020)

– Thomas L. Root

Unrest in the BOP Over COVID… It’s Staff and Senators, Not Inmates – Update for February 1, 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 KEEPS ON GIVING

sick220201A week ago Monday, the Bureau of Prisons broke a record.  On that day, the BOP reported 9,531 inmate cases, a crest that fell to 7,808 by last Thursday (thanks in no small part to the BOP’s aggressive practice of writing off inmates as “COVID recovered” after 10 days).

The BOP failed to report case numbers last Friday, Jan 28. But yesterday, the number was still at 7,724, a number above last year’s record of 7,690.

Staff numbers (which the BOP cannot manipulate by declaring people to be recovered, u it can with inmate numbers) climbed 26% from the Friday before to 1,956. Staff cases are flirting with the all-time high of 2,107 set on January 13, 2021.

The BOP reported five more inmate deaths last week, one each at FMC Ft Worth, FMC Butner and Butner I, FCI Mendota (California) and Coleman Medium. This raises the total of BOP and private-facility inmate deaths to somewhere over 300. The Ft. Worth death was the 17th inmate COVID fatality at the facility.

The BOP numbers do not include Juanita Haynes. Ms. Haynes, who unsuccessfully sought compassionate release from FPC Alderson women’s facility last summer, filed again for release on December 23 even as COVID gripped her. Too little, too late. Ms. Haynes was placed on a ventilator the day after Christmas. On January 3rd, her sentencing judge finally believed her, and granted compassionate release.

inmateCOVIDrights220124

“Ms. Haynes is currently suffering from a life-threatening case of COVID-19 and is unfortunately showing no signs of improvement,” the judge wrote. “Additionally, ICU staff have advised that if she is to recover from her current state, she will require a long-term tracheostomy. In light of these facts, the court concludes that Ms. Haynes’ current medical status amounts to a serious medical condition constituting extraordinary and compelling reason.”

Juanita Haynes died two days later, never coming out of her medically-induced coma to learn that she was a free woman. The BOP’s environment killed her, but because she expired after her release was ordered, it does not count her in its death total

ABC News reported last Wednesday that two U.S. Senators who had arranged to inspect FCI Danbury with labor union leaders and two state lawmakers “were barred from seeing the main women’s facility but were able to see a men’s unit after a ‘fight’ to gain access.”

Senators Richard Blumenthal and Chris Murphy (both D-Conn) sought to examine Danbury conditions in response to correctional officers’ complaints about a staffing shortage and lack of COVID precautions.

nosebusiness220201“There was clearly a decision made to try to stop both of us from seeing some of the conditions at this prison,” Senator Murphy said afterward. “This facility, even during COVID, should be open for inspection by policymakers. We need to see it during good times, but we also need to see it during bad times. And if the Bureau of Prisons has decided that US lawmakers are not going to be able to see what is really happening inside these prisons during a crisis, that’s a problem.”

The Denver Gazette reported Friday that BOP staff at FCI Englewood charged that the BOP had failed to “properly screen staff or broadly test inmates for COVID-19… ignoring federal guidance despite repeated pleas from the union that represents the facility’s workers.”

The result, the workers alleged, is the “largely unchecked spread of the virus in the sort of setting that has been a hotbed for outbreaks for nearly two years.” As of Thursday, Englewood reported 12 sick inmates and 18 sick staffers.

Inmates at FCI Englewood have to “beg and plead” to get tested, the Gazette said one union official had said, and “he alleged that the understaffed, in-house medical team had told some symptomatic inmates that they just have allergies.”

The Gazette said that in response to its inquiries, the BOP “said it would begin requiring enhanced screening for anyone entering the facility — the kind that employees say they’ve sought for months — starting Friday.”

As of yesterday, FCI Oakdale I reported 494 cases and Yazoo City Medium had 475. Five facilities had 200 or more cases, another 15 had more than 100 cases, and 24 more had 50 or over.

Ft. Worth Star-Telegram, Man’s death marks the 17th prisoner death from COVID at Federal Medical Center Fort Worth (January 27, 2022)

Lewisburg, West Virginia, Daily News, Three Alderson Inmates Have Died Due To COVID-19 (January 26, 2022)

ABC News, Senators say they were denied full access to federal prison (January 26, 2022)

Corrections1, Federal prison in Colo. allowing COVID to spread largely unchecked, employees say (January 31, 2022)

– Thomas L. Root

… And Venter Vents – Update for January 25, 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.

HOUSE SUBCOMMITTEE WITNESSES SAVAGE BOP’S COVID RESPONSE

venters220125Witnesses blasted BOP healthcare, CARES Act and compassionate release response, and the PATTERN score at a House of Representatives Subcommittee on Crime, Terrorism and Homeland Security hearing on what Rep. Jerry Nadler (D-NY) called “BOP’s troubling response to the COVID-19 pandemic and its inability to protect inmates and staff adequately.”

Nadler, who is chairman of the full House Committee on the Judiciary, said the BOP has a “duty to ensure basic protections for those in our custody” and “to make sufficient use of the authority granted to it under the CARES Act to place certain prisoners at home confinement earlier than previously permitted by statute…”

Epidemiologist Homer Venters, who has inspected some 40 prisons since the pandemic began, testified that “my greatest area of concern is that pre-existing deficiencies in the health services provided to people in BOP custody which contributed to the spread and lethality of COVID-19 remain unaddressed… My investigations have real revealed a disturbing lack of access to care when a new medical problem is encountered.”

Additionally, he argued that “there’s a compelling and unrealized rationale for release of high-risk patients who pose minimal public safety risks. This approach is even more important now to consider during the omicron outbreaks because of the tremendous lack of staffing inside facilities.”

death200330Venters faulted the lack of any independent review and assessment of reported COVID-19 deaths “including those that occurred in private facilities,” a number the BOP has been careful to erase from its count since contracts with those facilities lapsed. He argued that “the lack of independent assessment in how [inmate COVID] deaths are reviewed and more broadly the lack of meaningful oversight by a health organization” is a fundamental problem.

“Every other sector of health care in the United States has independent and professional health organizations reviewing the quality of care,” Venters told the Subcommittee, “but in the BOP and other carceral spaces we leave those crucial assessments to law enforcement to review its own provision of health care… The BOP is left to make its own assessments about the quality and scope of his health care and only sporadic investigations by the Inspector General of the Dept of Justice provide alternative viewpoints. This is wholly insufficient and leaves incarcerated people at a systemic disadvantage because the organizations and structures that measure and promote health for the rest of the nation for the rest of us are excluded from the care people receive in the BOP.”

University of Iowa law professor Allison Guernsey echoed the problems with the BOP’s self-reporting of inmate COVID numbers. “There are serious questions about the veracity of the BOP’s infection and death data. Not only do these questions cast doubt on the handling of the pandemic but they have real-world impact on the adjudication of compassionate release motions.”

She noted that the BOP has delayed reporting some COVID deaths for as much as a year, and that even now, Freedom of Information Act data she obtained from the BOP show five inmate deaths that the BOP has never publicly acknowledged. What’s more, she said, BOP numbers “don’t include anyone who died in a privately managed facility with a federal contract [which she reported totaled 17] and… it excludes people who were granted compassionate release just in time to die free.” Furthermore, she testified, “the Bureau of Prisons has admitted that its cumulative infection rate doesn’t include anyone who caught COVID and was then released from prison.”

With Guernsey’s additional numbers, the BOP’s inmate COVID death total is at least 301 inmates.

funwithnumbers170511Guernsey observed that “the accuracy of the data matters” because “courts rely on it routinely in granting compassionate release, and if a judge misjudges the COVID risk based on inaccurate data, people that we know are medically vulnerable will be left in prison to die.” She asked the Subcommittee to take steps to “require the BOP to report accurate and verifiable data. We should require them to do this for deaths and for infections, and we should require the BOP to comply with the mandates already articulated in the First Step Act by requiring them to report to this Committee and Congress what they are doing with respect to compassionate release procedures.”

[Editor’s aside: If the BOP accountants who diddle daily with the agency’s COVID numbers were in private industry, they’d have done the perp walk by now.]

Subcommittee on Crime, Terrorism, and Homeland Security, Hearings: The First Step Act, The Pandemic, and Compassionate Release: What Are the Next Steps for the Federal Bureau of Prisons? (Jan 21)

– Thomas L. Root

COVID Rages… – Update for January 24, 2022

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BREAKING RECORDS


numberone210326The Federal Bureau of Prisons maintained its streak, ending last week with a record-breaking 9,020 active inmate COVID cases. This is 17% higher than the previous worst week ever for COVID, when the BOP reported 7,690 sick inmates 56 weeks ago, on December 28, 2020 .

Last week’s total was 48% higher than the week before. At the same time, 1,432 BOP staff are down with COVID, a 52% increase over a week ago. Two more inmate deaths have been reported officially, two women, ages 30 and 59, at FPC Alderson.

The worst COVID conditions as of Friday were Yazoo City Medium (664 cases); Carswell (316 cases); and Herlong, Lompoc, Berlin, Yazoo City USP, Loretto, Los Angeles MDC and Marianna, all with more than 200 cases. Another 21 facilities reported between 100 and 200 cases.

The timing couldn’t be worse for the BOP’s pending motion in the class-action suit over its handling of COVID at Lompoc. Last Tuesday, the federal judge hearing the BOP’s motion to dissolve a July 14, 2020, preliminary injunction – that ordered the release of vulnerable inmates to home confinement – ruled that two facility reports by Dr. Homer Venters, a court-appointed infectious disease expert were admissible in the case.

The reports based on inspections in September 2020 and April 2021, were strenuosly objected to by the BOP. The judge held that the reports “have sufficient guarantees of trustworthiness, are more probative regarding the conditions at Lompoc than other evidence.”

The court asked Dr. Venters for an update on conditions at Lompoc, just as a local newspaper reported that 294 Lompoc inmates had COVID.

plaguevictim220124

“Having found Dr. Venters’ reports are admissible, the court finds a more recent report from [him] regarding the current conditions at Lompoc is needed prior to ruling on respondents’ motion for summary judgment and motion to dissolve [the preliminary injunction],” the Court said.

Despite complaints to the Attorney General by Sens Richard Blumenthal and Chris Murphy, and Rep Jahana Hayes (all D-CT) over what they described as “highly disturbing” reports that FCI Danbury was not following COVID-19 isolation guidelines, conditions “appear to have improved little” at the facility, according to allegations by BOP staff and a lawyer involved in an inmate COVID lawsuit there. The News-Times reported that about 80 inmates — some allegedly at higher risk — had been relocated in Danbury’s auditorium, and staff is “still not being provided appropriate personal protective equipment, according to Sarah Russell, director of the Legal Clinic at Quinnipiac University School of Law and a Quinnipiac law professor.”

The News-Times said the BOP responded that the agency follows CDC guidance, “the same as community doctors and hospitals, with regard to quarantine and medical isolation procedures, along with providing appropriate treatment.”

Vaccinesticker211005The CDC reported last Friday that Pfizer and Moderna vaccine effectiveness against hospitalization from Covid-19 omicron was 81% from two weeks until about 6 months after dose two, 59% after six months after dose two and 90% at least two weeks after a booster dose. The report issued the same day an federal court in Houston halted President Biden’s federal employee vaccine mandate.

This means that the 30% of BOP employees who have so far ignored the mandate when it was in place are unlikely to get a vaccine now that it’s gone away.

Not that vaccinations matter in the real world that much. As of last Friday, the BOP reports it has fully inoculated 1,511 Carswell inmates (despite Carswell only having a population of 1,296). Yet 312 inmates have COVID.

Santa Maria Times, 294 Lompoc federal prison inmates, staff test positive for COVID-19 (January 21, 2022)

Order, Torres v. Milusnic, Case No. CV 20-4450 (C.D. Cal. January 18, 2022)

Wall Street Journal, Third Dose of Pfizer, Moderna Covid-19 Vaccines Offers Strong Protection Against Omicron (January 21, 2022)

Feds for Medical Freedom v. Biden, Case No. 3:21-cv-356, 2022 U.S. Dist. LEXIS 11145 (S.D. Tex, January 21, 2022)

BOP COVID webpage (January 23, 2022)

News-Times, Reports from FCI Danbury show little change since legislators call for change (January 16, 2022)

– Thomas L. Root

BOP COVID Cases Smash Record – Update for January 19, 2022

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MEANWHILE, BACK IN THE COVID WARD…

Last week was the worst for BOP COVID since the pandemic started, so bad in fact that the agency didn’t even bother to issue numbers on Friday. When the numbers were finally posted yesterday, they were impressive (and not in a good way).

COVIDrocket220119

Case numbers grew 110% in a week, up from 4,377 on January 11 to a whopping 9,194 yesterday. This number eclipsed the previous record of 7,690 on December 28, 2020.  Yesterday’s number was 239% of the 21-day rolling average. 

Staff numbers hit 1,150, a 24% increase from the week before. One more inmate died, and COVID gripped all 128 institutions.

Forbes reported that “On December 10, 2021, there were 265 active COVID-19 infections among federal prisoners across the country… now, just a month later, that figure is at 3,761 cases and climbing. If the past is any indication of how the BOP is reporting these numbers, it is grossly underestimated.”

A BOP employee union representative at FCI Englewood told a Denver TV station complained that inmates don’t always follow COVID rules. “When you have people in our community in there for not following the rules, many of them don’t wear it, and that creates a burden in itself. You may catch inmates not wearing their masks all the time.”

Fault200728Some suggest it’s not necessarily the inmates’ fault. Writing at Medscape.com, an infectious disease expert complained about the low vaccination rate among BOP personnel: “Prison guards across the country have also been more reluctant than many others to receive the COVID vaccine, although they were prioritized to be vaccinated… The risk of acquiring COVID is sixfold higher in prison than in communities… While there were supply shortages early in the pandemic, there is no reason now that prisoners should not be cared for by fully vaccinated and masked staff and with provided better masks and ventilation. Imprisonment shouldn’t be a death sentence.”

Currently, only 69.5% of BOP employees have been vaccinated, compared to 74.6% of inmates (despite the fact that BOP employees are under a federal mandate to get vaxxed). So who are the scofflaws here?

Forbes complained that BOP facilities have been slow-walking CARES Act releases, saying, “Wherever there is a BOP facility, there is a person who is not being transferred to home confinement who is eligible per the BOP’s own policy. This is likely to continue without some intervention by the Executive or Legislative branch of government. The BOP is an organization that needs new leadership, is poorly managing the pandemic in its institutions, is behind in implementation of the First Step Act, has a terrible relationship with the union, experiencing staffing shortages, is short on qualified medical staff, has poor morale, has many staff calling in sick and multiple cases of staff corruption.”

Forbes, As COVID Cases Spike, Federal Bureau Of Prisons Is Not Releasing Eligible Inmates (January 11, 2022)

KCNC-TV, Denver, Federal Correctional Institution Englewood Employees Concerned About COVID Risk (January 13, 2022)

Medscape.com, Some Prisoners Face Risk for COVID From the Community (January 16, 2022)

– Thomas L. Root

COVID Deja Vu… All Over Again – Update for January 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.

JANUARY 2022’S KIND OF LIKE JANUARY 2021

deadcovid210914A year ago, the Bureau of Prisons was in the grip of a major COVID outbreak. How major? Back on New Year’s Day 2020, there were 6,831 sick inmates and 1,750 sick staff.

Things aren’t quite that bad right now, but as of last night, the number of sick inmates had increased 425% over the past two weeks, from 289 on December 20 to 1,516 currently. Sick staff increased 110% from 243 to 511. COVID is present at 94% of BOP facilities.

The percentage of vaccinated inmates inched up last week a half a point to 73.8%. Staff vaxxes still lag, up only 3/10th of a point to 69.1%.

Meanwhile, the nation is a hot mess. Last year, the country had 231,000 cases on New Year’s Day. Yesterday, there were 444,000.

A Fort Worth Star-Telegram story last Thursday reported on a December 16th FMC Fort Worth COVID death. The story noted that the inmate “is the 16th man to die from COVID-19 at FMC Fort Worth, according to BOP data. At the prison, ten incarcerated men and seven BOP staffers had confirmed COVID-19 cases as of Thursday… People incarcerated in prisons are at least 4.77 times more likely to be infected with COVID-19 than the general population, according to the Federal Public Community Defenders. At the federal women’s prison in Fort Worth, FMC Carswell, 70 women tested positive for COVID-19 as of Thursday and 22 BOP staff members had the virus. According to BOP data, FMC Carswell, — which is also a federal medical facility — had the 6th highest number of cases of all BOP facilities as of Thursday.”

Vaccinesticker211005In Connecticut, a female inmate at FCI Danbury has sued the BOP alleging that she was wrongly passed over for CARES Act home confinement because she cannot safely be vaccinated against COVID-19. 

Monique Brady, 46, contends in her December 16, 2021, complaint filed that she was wrongly passed over for home confinement even though she has underlying medical conditions that make her vulnerable to the disease. According to filings in Whitted v. Easter, the class-action litigation against FCI Danbury over COVID at the institution, which was settled largely in the inmates’ favor, Brady received one dose of vaccine but not the second. The institution’s medical staff advised her not to receive a second shot due to her reaction to the first one.

The BOP has previously told the Whitted v. Easter court that it would not consider home confinement for inmates who did not get fully vaccinated.

Brady claims she is at risk for COVID due to her taking prescribed steroids for a medical condition, obesity, a history of smoking, and high blood pressure. She asks the district court to issue an order that she be placed on CARES Act home confinement.
 

miracle181227The BOP continues to declare inmates recovered under its very liberal reading of CDC guidelines. Reality is not as forgiving. A research paper released last week reported that “Covid-19 can spread within days from the airways to the heart, brain and almost every organ system in the body, where it may persist for months.” In what Bloomberg described as the most comprehensive analysis to date of the SARS-CoV-2 virus’s distribution and persistence in the body and brain, scientists at the National Institutes of Health said they found the pathogen is capable of replicating in human cells well beyond the respiratory tract.”

The report pointed to delayed viral clearance as a potential contributor to the persistent symptoms wracking so-called long-haul COVID sufferers.

Ft Worth Star-Telegram, Man is 16th to die from COVID-19 at Fort Worth prison; cases spike at women’s facility (December 30, 2021)

Connecticut Insider, Lawsuit: Unvaccinated woman convicted in $10M Ponzi scheme a ‘sitting duck’ for COVID at CT prison (January 3, 2022)

Bloomberg, Coronavirus Can Persist for Months After Traversing Body (December 26, 2021)

Daniel Chertow, et al., SARS-CoV-2 infection and persistence throughout the human body and brain (Nat’l Institutes of Health, December 20, 2021)

– Thomas L. Root

BOP COVID Numbers Skyrocketing – Update for December 30, 2021

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

O-M-CHRON!

omicron211230COVID numbers, both in the Federal Bureau of Prisons and nationally, continue to shoot upward as COVID omicron has become the dominant strain of coronavirus in the USA.

As of last night, the BOP broke 1,000 inmate cases (1,011), up 25% in one day, with staff cases at 387, up 12% overnight. COVID was present in 114 of 122 facilities, or 93% of all BOP prisons. As of last week, the BOP reported that 73% of inmates and 69% of the staff are vaccinated.

Nationally, the country added nearly a half-million cases yesterday. Experts are estimating over 140 million people will catch COVID in the next four weeks.

BOP COVID-19211230

The big COVID flareup in the system last week was at FPC Alderson, a female facility. Forbes reported on Christmas Eve that of the 665 “inmates at the institution, 1o8 have active COVID cases and 43 have recently recovered … over 20% are currently or recently infected.” An attorney who represents women at the facility told Forbes, “The conditions there are just abhorrent. Women are sick, there is no hot water in the quarantine unit and staff is short. I’ve contacted the mayor (of Alderson, WV), the Bureau of Prisons and anyone who will look into this crisis.” The attorney said, “there are women there who are eligible to be placed on CARES Act home confinement, but they are languishing there as the pandemic’s Omicron variant rips through the facility.”

plaguebop211230Monday, USP Allenwood was number one with 143 sick inmates. As of yesterday, MCC Chicago had taken the lead with 132 sick inmates as Allenwood experienced the miraculous recovery of 29 inmates. (I have written before about the BOP’s questionable “recovered” declarations. In fact, 56% of all BOP inmate COVID deaths in the last nine months have been of “recovered” inmates).

The Marshall Project reported last week that “as with previous iterations of the virus, ‘everything about prisons and jails makes them a setup to magnify the harms of omicron. ‘The overcrowding. The poor sanitary conditions. The lack of access to health care,’ said Monik Jimenez, an epidemiologist at Harvard’s School of Public Health. ‘Masking is only going to do so much when you have people on top of you’.”

A federal prisoner in Florida told TMP that “They’re not telling us anything about omicron or anything else for that matter.”

quackdoc210707The Nation reported that “Under the weight of ongoing Covid-19 outbreaks and staff vaccine refusal, sickness, death, no-shows, and rapid turnover, jails and prisons have become increasingly deadly places for those who live and work inside their walls. Failures to protect those held in America’s roughly 5,150 jails and prisons have made these institutions into taxpayer-funded epidemic engines that have driven millions of preventable Covid-19 cases throughout US communities. In response, the consensus among national health and safety experts has been that large-scale decarceration is required to protect the public. For almost two years, lawmakers have largely ignored the appeals of health leaders, incarcerated people, prison staff, and community activists who know very well that, despite claims to the contrary, mass incarceration does not serve public safety.”

Johns Hopkins University, Coronavirus Resource Center (December 29, 2021)

Institute for Health Metrics and Evaluation, University of Washington, Anticipated COVID-19 Omicron infections in United States (December 22, 2021)

Forbes, The Women’s Federal Prison Camp At Alderson In Middle Of COVID-19 Outbreak (December 24, 2021)

The Marshall Project, Omicron Has Arrived. Many Prisons and Jails Are Not Ready. (December 22, 2021)

The Nation, As Covid Surges Again, Decarceration Is More Necessary Than Ever (December 22, 2021)

– Thomas L. Root

A Silver Lining In The Omicron Ugliness? – Update for December 21, 2021

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

IT WAS THE BEST OF TIMES…

best210111So omicron is unlikely to respect that you’ve had COVID before or been vaccinated, and there’s no reason to believe that it’s milder than its predecessors (see below). What could possibly be good about that?

What’s good is that this may represent the last best chance for inmates to win COVID-based compassionate release motions under 18 USC § 3582(c)(1)(A)(i). In the last 6 months, courts have often cited the questionable fact that if you’ve had COVID, you’re less likely to have it again or have it more seriously. What’s more, the judges are holding that being vaccinated reduces the risk to a level where compassionate release is unnecessary.

There’s a good argument to be made now that omicron has kicked the legs out from under both those arguments.

And this might be the last best chance to get a COVID compassionate release. Drugmakers Pfizer and Merck have both sought authorization for a COVID pill, and early tests show Pfizer’s pill cuts hospitalization and death from COVID by 90% and works against omicron.

Act-Now-300pxOnce those pills are approved and generally available – estimated to be about 90 days – it’s quite likely that the COVID compassionate release will be a thing of the past.

Macbeth might advise prisoners, “If it were done when ’tis done, then ’twere well it were done quickly.”

Reuters, Pfizer says COVID-19 pill near 90% protective against hospitalization, death (December 14, 2021)

– Thomas L. Root

COVID – We Ain’t Seen Nuthin’ Yet? – Update for December 15, 2021

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

LADIES LEAD THE WAY IN COVID NUMBERS JUMP

Bureau of Prisons inmate COVID numbers have jumped 65% in the last two weeks to 243, fueled by a spike at FCI Waseca, where 125 female inmates were sick last Friday. That number has dropped by half as of yesterday, due in no small part to the BOP’s habit of declaring any inmate to be recovered after t days, no matter her condition as long as she has no fever.

COVIDheart200720The BOP’s technique, a bastardization of what the Centers for Disease Control and Prevention recommends, no doubt accounts for the fact that 56% of all inmate COVID deaths in the last nine months have been of prisoners who had been declared “recovered” at some point in the past 20 months by the agency. Some inmates have reported that they were declared “recovered” ten days after COVID was diagnosed after nothing more than a quick temperature check. Others have reported that temps weren’t even taken: after ten days (provided you were not dead), you were considered to be “recovered” and sent on your way.

Case in point: an inmate whose death was reported today had COVID last February. “On Tuesday, February 16, 2021, in accordance with Centers for Disease Control and Prevention (CDC) guidelines, [he] was converted to a status of recovered, following the completion of medical isolation and presenting with no symptoms,” the BOP recounted in what has become its Newspeak for such situations.

Staff cases are stubbornly holding, at 229, within a rounding error of two weeks ago (232). The number of BOP facilities affected by COVID stands at 102, about the same as two weeks ago.

plague200406The BOP has logged four more inmate COVID deaths in the past two weeks. One of them was a Terminal Island inmate whose death last May 10 was only now attributed to COVID. Like more than 60% of inmates dying since March 2021, the inmate had recovered from COVID once before contracting it again and dying of it the second time around.

Nearly 93% of the federal workforce has now received at least one COVID-19 vaccine dose. Avernment Executive magazine, more than 97% is in compliance with President Biden’s mandate by either getting a shot or requesting an exemption. But BOP compliance is lagging significantly: As of last Friday, only 68% of BOP employees and 72.3% of inmates have been vaccinated. With the Biden Administration admitting no one will be fired for not getting the jab, new employee vaccinations have slowed to a crawl.

The real COVID news in the last few weeks is not the delta variant, which is still responsible for current inmate cases. Instead, delta may be a tortoise next to the COVID-19 omicron variant. That variant – identified in South Africa for the first time on November 24, 2021 – has been found in 25 U.S. states in just 16 days. Officials of the UK and other European countries have predicted that omicron will become the dominant strain of COVID in their countries “within days, not weeks.” Cases in Europe are doubling “every two to three days.”

omicron211215Vaccines appear not to provide heightened resistance to omicron. An Oxford University study has found that two doses of Oxford-AstraZeneca or Pfizer-BioNTech Covid-19 vaccines are substantially less effective at warding off omicron than previous coronavirus variants. The study tested blood samples of people 28 days after their second dose of either vaccine. When omicron was introduced to those samples, scientists reported “a substantial fall” in the neutralizing antibodies that fight off COVID compared to the immune responses seen against earlier variants. The research paper noted that some vaccine recipients “failed to neutralize [the virus] at all.”

The same is true for the J&J single-dose vax. Johnson & Johnson’s vaccine produced virtually no antibody protection against the omicron coronavirus variant in a laboratory experiment, underlining the new strain’s ability to get around one pillar of the body’s defenses.

While there has been some speculation that omicron may not generally cause symptoms as severe as those caused by alpha and delta variants, no studies have yet confirmed that. In fact, Dr. Paul Burton, chief medical officer for Moderna, predicted yesterday there is a very real risk of getting a “dual infection” from both omicron and delta. He said: “In the near future these two viruses are going to coexist.”

deadcovid210914The UK logged its first omicron death on December 13, only two weeks after the nation recorded its first omicron case. Boris Johnson, the UK Prime Minister, warned that “the idea that this is somehow a milder version of the virus, I think that’s something we need to set on one side and just recognize the sheer pace at which it accelerates through the population.”

The silver lining to the coming 4th wave is this: with a COVID pill about 100 days away, this may be the last chance for prisoners to convince a court to grant a compassionate release based on COVID.

Mankato Free Press, Waseca prison has biggest COVID-19 outbreak in country (December 9, 2021)

BOP, Inmate Death at FCI Terminal Island (December 6, 2021)

BOP, Inmate Death at FCI Butner II (Medium) (December 14, 2021)

Government Executive, An inside look at the White House’s approach to implementing Biden’s mandate (December 10, 2021)

New York Times, South Africa detects a new variant, prompting new international travel restrictions (November 25, 2021)

CNBC, Omicron detected in Florida and Texas as it takes root in 25 U.S. states (December 10, 2021)

Washington Post, Omicron could soon become dominant in some European countries, officials predict (December 10, 2021)

Oxford University, Reduced neutralisation of SARS-COV-2 Omicron-B.1.1.529 variant by post-immunisation serum (December 13, 2021)

– Thomas L. Root

BOP COVID Number Climb Again – Update for December 9, 2021

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

COVID’S BACK… REALLY, IT NEVER LEFT

coviddelta210730Not quite 6 months ago, the CDC director predicted that COVID-19 Delta – which had just been identified – was likely to become the dominant strain in the US. As of two weeks ago, Delta accounts for 99% of COVID worldwide.

Now, the first cases of COVID Omicron have made US landfall. The New York Times reported last Friday that new research indicates that the Omicron “variant can spread more easily than Delta, which was previously the fastest-moving version of the virus.” Omicron’s rapid spread results from a combination of contagiousness and an ability to dodge the body’s immune defenses, the researchers said. South African scientists reported on Thursday that having had COVID-19 previously appears “to offer little to no protection against the Omicron variant.”

Even without Omicron, the BOP is experiencing a post-Thanksgiving COVID surge. Yesterday, 254 inmates systemwide had COVID, up 49% from a week before, primarily due to 132 new cases at FCI Waseca. Staff cases fell from 231 to 220, and the number of affected prisons held at 99. The BOP has logged four more COVID deaths, three of whom have been identified, at FCI Hazelton, FCI Seagoville, and FCI Terminal Island. One of the announced deaths is of someone who had had COVID-19 before but had recovered.

deadcovid210914BOP vaccinations slowed last week. Vaccinated staff numbers rose about 8/10ths of a point to 67.35%. Inmate vaccinations ended the week up 6/10ths of a point to 71.55%.

A UK study last week reported that in late autumn 2020 in the U.K., COVID-19 became more lethal—meaning that the probability that an infected person would die from the disease increased. Scientists are trying to determine the reason for the deadlier results. And yesterday, Dr. Rochelle Walensky, director of the CDC, told the Associated Press that of the 40-plus people known to be infected by omicron so far in the United States, more than 75% were vaccinated, and one third had received a booster shot. She said that almost all the cases resulted in mild illness, with only one case requiring hospitalization.

Wall Street Journal, Delta Covid-19 Variant Likely to Become Dominant in U.S., CDC Director Says (June 18, 2021)

SciTechDaily, New Statistical Analysis Shows COVID-19 Became Much More Lethal in Late 2020 (December 1, 2021)

CNBC, WHO says delta variant accounts for 99% of Covid cases around the world (November 16, 2021)

USA Today, Delta drives surge in US cases before omicron gains foothold; 75% of US infections by new variant among vaccinated: Latest COVID-19 updates (December 10, 2021)

– Thomas L. Root