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Omicron! More COVID in BOP’s Future? – Update for November 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.

SOMETHING NEW ABOUT COVID – AND IT’S NOT GOOD

Last week, I suggested COVID might not be over, but may just be in a “lull.” Sadly (and unusual for me, according to my wife), I may be right.

coviddelta210827

First, how’re things in the Bureau of Prisons? After hitting a low of 95 inmates and 258 staff with COVID on November 19, the BOP numbers started climbing again. As of last night, inmate cases had increased by 41% since then, and staff cases remained at 258. Facilities reporting COVID jumped from 92 to 102 in a week (constituting 83% of all BOP installations) reported inmate or staff COVID.

The White House said last week that 92% of federal employees got the vaccine by President Biden’s November 22 deadline. But the BOP reported as of last Friday that only 66.5% of its estimated 37,000 employees had been jabbed. That number still trails the 70.9% of inmates who have been vaccinated, and is way off the government average. BOP staffers, however, can remain pretty confident – given the agency’s serious staffing shortage – that no one’s going to be fired for refusing a dangerous and untested vaccine that only a handful of Americans, say 225 million or so, have received without serious adverse effects.

(Americans like me: I’ve had three doses of Pfizer, and the only side effect I have suffered is weight gain… or maybe that’s from doughnuts).

A Times of India story last week reported that the FCI Texarkana study done by the Centers for Disease Control last August confirmed that “there is no statistically significant difference in the transmission of coronavirus between fully vaccinated and non-vaccinated.” That is, being around fully vaccinated people does not protect an unvaccinated person from contracting the virus.

Bloomberg reported yesterday that the predicted winter surge may have already begun. The city’s positive test rate rose to a two-month high as hospitals admitted more than 100 new virus patients last Friday, contributing to a 25% jump in hospitalizations in just two weeks.

xi211130News broke last Thursday of a new, potentially fearsome COVID threat, variant B.1.1.529. The variant is called “Omicron,” which was not the next letter in the Greek alphabet but was the next letter in the Greek alphabet beyond “xi,” a letter that sounded a lot like the leader of a large country in which COVID may have first escaped from a lab. Maybe.

At any rate, COVID Omicron is already spreading, the Biden administration was told. And, before long, evidence emerged that the variant carried worrisome mutations. When it first appeared on a global database of coronavirus genomic sequences, scientists were surprised. “This was the weirdest creature they’d seen to date,” The Washington Post reported. It had an unruly swarm of mutations. Many were known to be problematic, impeding the ability of antibodies to neutralize the virus. But there had never been a variant with so many of these mutations gathered in a package.”

“We have seen these mutations in other strains, in twos and threes, and each time they were a little harder to neutralize, but didn’t spread particularly well. Now, all together? It’s a complete black box,” Benjamin Neuman, a virologist at Texas A&M University, said in an email to the Post.

COVIDvaccine201221On Saturday, COVID-19 cases caused by the Omicron variant were confirmed or suspected in a widening circle of nations, including Britain and Germany. The pharmaceutical companies whose vaccines had appeared to chart a path out of the pandemic are expediting development of new formulations targeting the variant.

For now, despite the courts and government arguing that COVID is over, it seems that more ugly may be on the way.

Washington Post, More than 9 in 10 federal workers and military personnel are vaccinated, with only a small percentage seeking exemptions, White House says (November 24, 2021)

Bloomberg, New York City May Be at Start of Winter Surge of Covid-19 (November 28, 2021)

Times of India, Scientists have figured out how vaccinated people spread COVID-19 (November 26, 2021)

Washington Post, ‘You’ve got to prepare for the worst’: World responds to new variant’s arrival (November 27, 2021)

Washington Post, Omicron mutations alarm scientists, but new variant first must prove it can outcompete delta (November 29, 2021)

– Thomas L. Root

The COVID Calm and BOP Staff Vax Noncompliance – Update for November 24, 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.

JUST A COVID LULL?

deadcovid210914The BOP’s official inmate COVID numbers continued to fall last week, ending Friday at 95 ill inmates, a 34% decrease from the week before. Ominously, however, staff cases increased by 4% to 263. COVID remains in 92 facilities, down only two from a week before.

But in the last few days, things have turned around (and not in a good way). As of last night, 107 inmates were ill, 258 staff were sick, and COVID was present in 100 facilities (82% of all BOP prisons).

The BOP reported one additional inmate death last week, but it was from last July (and apparently escaped the Bureau’s notice). Ruben Castillo, who had had COVID before he arrived at the BOP, died of what the Bureau said were “post-COVID cardiac complications.” Yet the courts and government continue to argue that inmates who have had COVID don’t face any continuing risks.

As of last Friday, 70.2% of inmates were vaccinated. But with the November 22 deadline for BOP staff vaccinations now having passed, only 65.7% have gotten the shot, according to BOP statistics, up just 1.3 points from last week. This compares to a systemwide vax rate of 90% for federal workers.

So those noncompliant BOP staffers will be fired now, right?

noodle211124Well, that was the story once. But now, the punishment has gone from 40 lashes with a cat-o’nine-tails to 30 lashes with a soggy spaghetti noodle. NBC reports that “for those who haven’t met the requirement or requested a medical or religious exemption, the federal government will continue an “education and counseling process, followed by additional enforcement steps over time if needed’,” quoting a White House official.

White House press secretary Jen Psaki said the administration doesn’t “anticipate facing any governmental operational disruptions due to [the vaccine] requirement and in fact, the requirement will avoid disruptions, in our view, in our labor force because vaccinations help avoid COVID.”

The U.S. reported a seven-day average of nearly 95,000 new COVID infections last Thursday, up 31% over the past two weeks. “I’ve been predicting a pretty bad winter wave again, and it looks like it’s starting to happen,” Peter Hotez, the dean of the National School of Tropical Medicine at Baylor College of Medicine, said last week. “There’s just too many unvaccinated and too many partially vaccinated [people].”

COVIDvaccine201221That “too many” number apparently includes inmates, too. Although a much larger percentage of federal inmates have been jabbed than staff,  a former prisoner-turned-writer for Biz News last week argued that opposition by prison staffs to “vaccine mandates highlights an illogical situation that has developed with little discussion: To date, neither the federal government nor any state or municipality has officially mandated the jab for their incarcerated populations. That doesn’t make sense: Prisoners, who are at higher risk for infection and death than corrections officers, aren’t required to get vaccinated while corrections officers, who are at lower risk, are being told they must get vaccinated.”

Expect more of those arguments. In New York City, where the mayor has ordered all city corrections staff to be vaccinated, union chief Benny Boscio complained last week that “it is extremely hypocritical to mandate our officers be vaccinated, while there is no mandate for the inmates in our custody…”

Except where the mandate neither has teeth nor much effect.

BOP, Inmate Death at FCI Stafford (November 17, 2021)

CNBC, Covid cases rise yet again in U.S. ahead of Thanksgiving holiday (November 19, 2021)

The Hill, Experts predict an alarming surge of US COVID-19 cases this winter (November 18, 2021)

NBC News, Administration expects 95% compliance with federal worker vaccine mandate (November 23, 2021)

Washington Post, Federal workers can be fired for refusing vaccination, but must show up to work until their cases are determined, new guidance says (September 17, 2021)

Stat News, Vaccine mandates should cover the incarcerated, too, not just prison guards and workers (November 18, 2021)

Corrections1, NYC correction officers refusing to get COVID shots despite looming mandate (November 17, 2021)

– Thomas L. Root

BOP Staff Gear Up to Fight Vaccine – Update for October 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.

BOP MAY BE ON BACK SIDE OF COVID DELTA BREAKOUT, BUT FIREWORKS ARE COMING ANYWAY…

taketheshot211021President Joe Biden’s mandate that all federal employees get vaccinated became effective October 8 (with a November 22 deadline), but you couldn’t tell it from the numbers. Last week, a total of 152 additional BOP employee got the shot, less than a half percent of the workforce. As of last Friday, 67.4% of inmates had been vaxxed, but only 55.6% of BOP workers had received the shot.

The Federal Labor Relations Authority last week denied a temporary restraining order to the union that represents Federal Bureau of Prisons employees to keep the Biden Administration’s vaccine mandate from taking effect.

The union filed an unfair labor practice charge with the FLRA regarding the vaccine mandate and requested a temporary restraining order against BOP to prevent implementation of the executive order until the parties negotiate it. Richard Heldreth, mid-Atlantic region vice president for the Council of Prison Locals, told Government Executive magazine that the unfair labor practice charge was not based on “undermining the executive order…but the council is against forced mandates. The union is just “trying to force the agency to bargain,” Heldreth said.

picket211021Andy Kline, president of AFL-CIO Local 148, whose members work at Allenwood and Lewisburg, last week accused the Biden administration of failing to bargain with unions over the mandate. “This administration is not union-friendly at all — something they campaigned on,” Kline said. “They came up with a deadline: Whether you have one year in or 30 years in, you’re going to have this vaccination by November or [they are] going to fire you for Christmas… Allowing the union to bargain would have allowed options for staff to get tested instead of vaccinated, allow them the only FDA-approved vaccine and many more possibilities.”

Kline’s union has been picketing along roads leading to Lewisburg and Allenwood. The picketing will expand to a nationwide movement on October 29. (Parenthetically, I had an inmate tell me yesterday that he’d heard a rumor that the entire system would be locked down in October 29 because everyone would be fired for not having the vaccine. I explained that the deadline is November 22, and that the October 29 day is just a planned work stoppage).

Staff resistance to the vaccine is one way to explain the anomalous BOP COVID numbers. Inmate COVID numbers as of yesterday were 172, down 37% from a week ago. Yet staff COVID infection remained more than double that, 454, down only about 3% from a week ago. With inmate recoveries (if that’s what they are), the number of BOP facilities with active COVID should be falling. Yet, the number remains at 103 of 122 facilities, 84% of all BOP prisons.

BOP staff resistance to COVID may provide prisoners seeking COVID compassionate release some traction. A BOP staff made up of those unwilling to be vaccinated carrying the disease into the facility on a daily basis may undermine government claims that the agency has the virus under control.

Government Executive, Coronavirus Roundup: Vaccine Rule Submitted to White House; 60% of TSA’s Workforce Is Vaccinated (October 14,2021)

Williamsport PA Sun-Gazette, Corrections workers protest Biden mandate (October 15, 2021)

Northcentral PA.com, Local picket of vaccine mandates inspires National Picket (October 15, 2021)

– Thomas L. Root

Three Appellate Decisions Make Compassionate Release Even Mushier – Update for October 12, 2021

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

A SERIOUS COLLISION AT THE “INTERSECTION OF LAW AND SCIENCE”

In yesterday’s Dilbert, the Pointy-Headed Boss complaining, “If I thought data would influence my decision, I wouldn’t let you gather it.”  The Boss should lobby for a seat on the 6th, 8th, or 10th Circuit. He’d feel right at home.

dilbert211012

Compassionate release decisions under 18 U.S.C. § 3582(c)(1)(A)(i) last week from those three courts were overly deferential to district court decisions that are at odds with the facts (the data, as it were).

In the 10th Circuit, Adam Hemmelgarn said his mild asthma, a cyst on his lungs, and an array of physical effects from his prior COVID illness put him at risk if he contracted it again. His district court denied him relief, holding that the fact Adam had contracted COVID once and recovered suggested his medical condition did not place him at high risk of severe illness.

On appeal, Adam pointed to CDC guidance that one could catch a more severe case of COVID even after recovering from a prior infection. But the 10th Circuit, with remarkable circular reasoning, ruled that “the district court’s statement that Hemmelgarn recovered from COVID-19 despite his medical conditions is simply consistent with the view that those conditions do not place him at high risk of severe illness from COVID-19. Thus, this finding of fact is not clearly erroneous.”

sick211012jpgThe holding overlooks Adam’s point. It ignored the CDC warning Adam cited in his brief that “you can contract COVID-19 more than once, with more severity each time.” And of course, the decision ignores the inconvenient fact that in 64% of the 33 cases of BOP inmates whose deaths have been announced since March 1, 2021, the inmates who died of COVID had had previous coronavirus cases and recovered without serious effects (or at least, without effects as serious as dying, which is what happened the second time around).

In the 8th Circuit, Andrew Marcussen’s district court found he suffered from “COPD, hypertension, hyperlipidemia, prediabetes, BPH, GERD, seborrheic dermatitis and obesity.” Despite Andy’s infirmities sounding like a medical school final exam, the district court concluded his “underlying medical conditions, in combination with the COVID-19 pandemic, are not ‘extraordinary and compelling reasons’ for a sentence reduction.” This, the district judge wrote, was because of the “well-controlled nature of Defendant’s COPD and hypertension.”

On appeal, the government conceded that based on CDC guidance, Andy’s COPD and obesity qualified as extraordinary and compelling reasons for a sentence reduction. But the appeals court didn’t care about the DOJ’s admission. Compassionate release “requires a judicial determination of ‘extraordinary and compelling reasons’ based on an inmate’s unique circumstances,” the court said. “That determination is not governed by the Executive Branch, either the CDC’s general pronouncements relating to COVID-19 risks, or a United States Attorney’s ‘concession’. Those are of course relevant opinions, but they do not control the district court’s exercise of discretion.”

The Pointy-Headed Boss couldn’t have said it any better. You wonder where Scott Adams gets his material? One might be forgiven for wondering… if the record does not cabin the court’s discretion, then what does?

Before the district court, the government vigorously argued that Adam’s COPD and high BMI were not extraordinary and compelling reasons. It only changed its mind on appeal. Shouldn’t the district court get a second whack at the issue knowing the government agreed with the defendant? Any lawyer with a bar license on which the ink has dried knows that the government’s position on a matter before the court – especially in a criminal case – has an outsized influence on the court’s perception of an issue. The 8th’s implication that the government’s position had no influence on the district court’s decision is laughable.

More to the point, the issue is not whether Adam’s medical conditions are well-controlled absent Adam catching COVID. Instead, the question is whether obesity and COPD (not to mention everything else) will make matters worse if he does catch COVID. It’s like saying that a heart weakened by multiple heart attacks is well-controlled with meds and a pacemaker, so there’s nothing wrong with the patient running the Boston Marathon.

Finally, the 6th Circuit ruled that the fact that Michael Lemon is vaccinated ought to be ‘game, set, and match’ in denying his compassionate release motion:

“Following full vaccination, it is now well understood, both the likelihood of contracting COVID-19 and the associated risks should one contract the virus are significantly reduced,” the Circuit ruled, citing the CDC. Thus, Mike’s “access to the COVID-19 vaccine substantially undermines his request for a sentence reduction. To that end, we agree with the Seventh Circuit that a defendant’s incarceration during the COVID-19 pandemic — when the defendant has access to the COVID-19 vaccine — does not present an “extraordinary and compelling reason” warranting a sentence reduction… After all, with access to the vaccine, an inmate largely faces the same risk from COVID-19 as those who are not incarcerated. To be sure, inmates in some respects face social distancing challenges distinct from those of the general public (although perhaps not entirely unlike students in dorm rooms, individuals in medical and assisted care facilities, and even residents of densely occupied apartment complexes). But to the extent prisons do offer some unique challenges, the vaccine now significantly reduces the risks associated with COVID-19.”

collision211012The 6th calls this the “intersection of law and science.” But a lot of collisions happen at intersections. This decision comes only a week or so after a CDC report admitted that 70% of vaccinated inmates in a study group last August at an unidentified Texas BOP facility (it was FCI Texarkana) tested positive for COVID-19, not to new mention studies that vaccine life is a lot shorter than first thought.

In short, the evolving science provides scant support for a lot of faith in vaccines. They’re way better than nothing, but not nearly the pandemic antidote the courts say they are.

United States v. Hemmelgarn, Case No. 20-4109, 2021 U.S. App. LEXIS 30221 (10th Cir., October 8, 2021)

United States v. Marcussen, Case No. 20-2507, 2021 U.S. App. LEXIS 30109 (8th Cir., October 7, 2021)

United States v. Lemons, Case No 21-5313, 2021 U.S. App. LEXIS 30267 (6th Cir., October 8, 2021)

Centers for Disease Control and Prevention, Outbreak of SARS-CoV-2 B.1.617.2 (Delta) Variant Infections Among Incarcerated Persons in a Federal Prison — Texas, July–August 2021 (September 24, 2021) 

– Thomas L. Root

COVID’s Ugly… and Puzzling – Update for October 5, 2021

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

COVID IN PRISON: WHO TO BELIEVE?

This is not my usual complaint about the BOP’s voodoo accounting for inmate COVID patients (although if cooking the books is a sin, a lot of BOP bean counters had better be pretty busy on Sunday morning). This is a more general head-scratch about how everything we knew about COVID seems, day by day, to be proven wrong.

Vaccinesticker211005How about the one that the vaccine (or a prior bout of COVID) will provide enduring protection? The government loves to trot out the argument that compassionate release due to the dangers of COVID is passe, because the prisoner is either (1) fully vaxxed; or (2) recovered from a prior bout of COVID, and thus naturally immune. It now appears that this chestnut is running headlong into the real world.

Diamonds Are Forever… But Not Vaccines: There is mounting evidence that vaccines are shorter-lived than the government says they are, and having COVID once does not immunize you from getting it again. Reuters reported last Friday that six months after receiving the second dose of the two-shot vaccine from Pfizer, many recipients no longer have vaccine-induced antibodies that can immediately neutralize worrisome variants of the coronavirus. In other words, that Pfizer poke you got in April likely isn’t doing anything for you now.

COVID Ain’t One-and-Done:  As for immunity due to having had COVID once, a review of all of the BOP’s press releases in inmate deaths – available at BOP.gov – since March 1, 2021, 19 of 28 reported deaths (68%) were of inmates who had previously recovered from COVID.

plague200406Let that sink in. More than half of the federal prisoners who died of COVID in the last seven months had already had COVID-19 once, and the prior bout from which they had recovered was not nearly as serious as the second one.

Now back to vaccines: the Centers for Disease Control and Prevention descended on FCI Texarkana last August when an early breakout of COVID-19 Delta erupted. The CDC study found that while 93% of the Texarkana inmates (39 of 42) infected with COVID-19 Delta were unvaccinated, 70% (129 of 185) infected had received both doses of vaccine. Infections were found in 89% of those vaccinated more than four months previously and 61% in those vaccinated in the last two months.

The data are showing CDC scientists (and the rest of us) that immunity from a prior COVID infection or vaccine is far from substantial protection.

BOP Numbers:  The BOP’s COVID numbers fell from 631 inmates and 547 staff on Sept 24 to 480 and 497 last Friday. But COVID is still present in 112 of 122 facilities. Four more inmates died last week. Inmate vaccinations jumped four points to 65.6%. Staff vaccinations still lag, up less than a half point to 54.8%.

antivax211005Staff Shots: A Presidential Executive Order to enforce vaccinations of BOP staff (not inmates) will begin this coming Friday. If staff are not fully vaccinated by Nov 22, they will face employment termination. BOP staff from USP Lewisburg, USP Allenwood, USP Canaan, FCI Schuylkill, and LSCI Loretto picketed last week against the mandate. Forbes reported last week that an Inspector General’s survey of BOP employees show substantial staff hesitancy or resistance to getting the vaccine, and “almost a third of those respondents reported that they have considered leaving the agency.”

COVID Infection is Arbitrary, and So is Compassionate Release: The gross disparities in grant of compassionate release are getting more notice. A CNN report last week noted that “17.5% of compassionate release motions were granted in 2020 and the first six months of 2021, newly released sentencing commission statistics show. But that rate ranged from a low of 1.7% in the Southern District of Georgia, where all but four of 230 motions were denied, to a high of 77.3% in the District of Puerto Rico, where 17 of 22 motions were granted. Judge Charles Breyer, the only current member of the sentencing commission, said in an interview that he thought the lack of updated compassionate release guidelines was exacerbating the wide disparities between districts.” Breyer argued that “You need a national standard,” adding that without one, “it creates a vacuum and it creates uncertainty, and most importantly it creates disparity.”

Just over 40% of motions decided in March 2020 were approved, CNN reported, but that fell to less than 17% in December and about 11% in June 2021. The decline this year came as the number of new coronavirus cases behind bars receded and vaccines became widely available in the prison system.

limp211005At Last, A Reason for Guys to Get Vaxxed: Still wondering about taking the vaccine? A report last week spotlighted mounting evidence that COVID-19 may sabotage men’s sexual health. Men may be six times more likely to develop brief or long-term erectile dysfunction after contracting the virus, according to research published in March. So guys, your reasons for rejecting vaccination are starting to seem… kind of limp.

CDC, Outbreak of SARS-CoV-2 B.1.617.2 (Delta) Variant Infections Among Incarcerated Persons in a Federal Prison — Texas, July–August 2021 (September 24, 2021)

Am Council on Science & Health, Prison Breakout … of the Delta Variant (September 26, 2021)

NCPA.com, Bureau of Prisons’ staff face vaccinate mandate; union picket ensues (September 29, 2021)

Reuters, Science News Roundup: Delta increases COVID-19 risks for pregnant women; Pfizer/BioNTech vaccine antibodies gone by 7 months for many (October 1, 2021)

CNN, Compassionate release became a life-or-death lottery for thousands of federal inmates during the pandemic (September 30, 2021)

Natl Geographic, COVID-19 may impair men’s sexual performance (September 22, 2021)

– Thomas L. Root

EVEN THE SUSPECT COVID NUMBERS ARE HIGH – UPDATE FOR SEPTEMBER 2, 2021

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

YOU CAN’T FIND WHAT YOU DON’T LOOK FOR

The BOP’s official COVID numbers as of last night stood at 512 sick inmates (up 7% from a week before) and 490 staff (up 24%). COVID is present at 110 out of 122 facilities.

cantfind210902The BOP’s official count is not without controversy. Joe Gulley, union president at USP Leavenworth, told Business Insider the number of staff who had had COVID was at least 20 times higher than officially reported. “The Warden lied because he wanted his bosses and the public to think he was doing a good job,” Gulley said in a statement. “His only concern was that everyone outside of USP Leavenworth believed he was controlling Covid and keeping everyone safe so he could get his next promotion.”

The BOP said it tested an average of 33 inmates a day for COVID over the last 10 days. That’s only 64% of the number of COVID-positive inmates the BOP reports. In fact, it is only 10% of the testing the BOP was doing in a similar period last December. You have to wonder how the BOP found 512 COVID-infected inmates when only ran 328 tests during the 10-day period it typically carries an inmate as being sick. (The BOP habitually declares everyone as “recovered” after 10 days – including a number of them who subsequently die of the COVID from which they’ve “recovered,” but that’s a story for another day).

One cannot find what one does not look for.

As of last Friday, 58.2% of inmates were vaccinated, up 1.4 points from last week. Staff still lags at 53.1%, up only 0.2 points from the week before. The Food and Drug Administration gave regular approval to the Pfizer vaccine last week, and the military has already ordered its personnel to be vaccinated. BOP staff may soon lack the right to refuse the vaccine.

coviddelta210730Government Executive reported that “a chapter of the American Federation of Government Employees representing BOP staff at FDC Miami picketed last week to protest “unsafe working conditions stemming from an outbreak of COVID-19 infections among inmates, a rise in inmate assaults on employees, and chronic understaffing of the administrative security facility.” A union press release alleged, “These conditions endanger the lives of inmates, prison employees and the general community.”

Government Executive, Coronavirus Roundup: FDA Grants First Full Approval for COVID-19 Vaccine; Pentagon Announces Vaccine Mandate (August 23, 2021)

Business Insider, Unrest at the big house: federal prison workers are fed up, burned out, and heading for the exits (August 25, 2021)

– Thomas L. Root

BOP COVID Report – Update for August 10, 2021

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SO WHAT ABOUT THAT COVID VARIANT?

The Bureau of Prison’s own sometimes-controversial numbers suggest the agency is holding the COVID-19 Delta line for inmates, with 310 reported ill as of last night, up only 5.4% since a week before. The BOP has complete control over that number. But it has less control over the number of ill BOP employees – up 48% from a week before, from 157 to 233 – and the number of facilities with COVID-19 present. That number jumped from 80 to 96 joints, the highest level in four months.

Raisedead210208According to data published Sunday by the U.S. Centers for Disease Control and Prevention, 50.1% of the total U.S. population is now fully vaccinated – more than 166 million people. The US now is averaging more than 100,000 new COVID-19 cases every day, the highest in almost six months. The BOP reports 55.7% of inmates and 52.5% of staff have been vaccinated.

Two more inmate deaths were reported last week, one July 17th at Texarkana and a second, on July 28th at FMC Ft Worth. Roy Berry, who died at Ft Worth, had COVID in March but had been declared recovered by the BOP. At least 257 federal inmates have died of COVID. Due to squirrely reporting from private prisons (where reports of deceased prisoners magically disappeared from time to time), the number is certainly higher than that.

USP McCreary reported 56 sick inmates, Miami FDC 25, FCI Texarkana 25, FCI Phoenix 24, USP Yazoo City 14, FMC Butner 13; and FCI Terminal Island with 11.

NPR reported last Friday on the COVID-19 Safer Detention Act, noting that the bill – sponsored by Sens Richard Durbin (D-Illinois) and Charles Grassley (R-Iowa) – would extend compassionate release to the ever-decreasing numbers of “old law” inmates (those sentenced before 1988) still in the system.

The bill, which has passed out of the Senate Judiciary Committee and is also pending in the House, would ease COVID-19 compassionate release procedures, make permanent CARES Act home confinement, and benefit Elderly Offender Home Detention  inmates.

home190109Meanwhile, Reason magazine argued last week that the CARES Act home confinees have proven that home detention is a viable imprisonment alternative. “The overwhelming majority of those released on home detention have not reoffended. Of the 28,881 prisoners allowed on home detention last year, only 151 individuals, less than 1%, violated the terms of their confinement. Only one person has committed a new crime… In short, home detention seems to be largely successful. Most prisoners under the program have stayed out of trouble and are working to become law-abiding citizens. In doing so, they are saving taxpayers the exorbitant price of incarceration—which, on average, costs over $37,500 per year versus $13,000 per year for home confinement and monitoring.”

BOP, COVID-19 resource page (August 9, 2021)

CDC, COVID Tracker (August 8, 2021)

BOP, Inmate Death at FCI Texarkana (August 2, 2021)

BOP, Inmate Death at FMC Ft Worth (August 3, 2021)

NPR, Some Older Prisoners Aren’t Eligible For Compassionate Release. Lawmakers Want Change (August 6, 2021)

Reason, The Pandemic Showed Home Detention Works (August 6, 2021)

– Thomas L. Root

Biden Says Trump Got It Right on CARES Act Home Confinees Going Back to Prison – Update for July 29, 2021

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

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

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

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

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

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

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

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

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

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

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

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

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

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

– Thomas L. Root

BOP Healthcare: No Experience Required – Update for July 7, 2021

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

BOP HEALTHCARE TAKES IT ON THE CHIN

The Bureau of Prisons’ healthcare system took some hits last week.

BOPkickme210707First, from the “Crime Pays – If The Victim is the BOP” department: NaphCare – a private company that boasts it offers “proactive, preventative medical and mental health care providing community-standard of care in jails and prisons” – demonstrated how to defraud the BOP without consequence. NaphCare overbilled the BOP by “submit[ing] inflated claims for evaluation and management services.” And, after stealing at least $690,000 from the BOP, not only are there no criminal prosecutions, but NaphCare’s contract continues without interruption. All it has to do is pay it back.

Try that one with the judge on your next fraud indictment.

The Dept. of Justice announced last week that it had settled a False Claims Act proceeding against NaphCare by agreeing that the company could pay back $694,000 without admitting that it had done anything wrong. The “anything wrong” was a scheme whereby its employee physicians occasionally did not indicate the type of service performed on an inmate when they completed onsite visit sheets. When that happened, a NaphCare employee would fill in a code for a more expensive medical service and bill the BOP accordingly.

The scam went something like this: the NaphCare doc treats Ira Inmate for an ingrown toenail but fails to code it on his report turned into the home office. A NaphCare staffer sees the blank, and inserts the code for “heart transplant.” NaphCare charges a bit more for heart transplants.

The government caught NaphCare pulling the grift at USP Terre Haute and USP Victorville. The settlement agreement suggests NaphCare did it elsewhere, too, and has to report other improperly-billed costs within 90 days. In other words, the $694,000 at two facilities may just be the tip of the iceberg.

As an old law partner of mine liked to say, “no thief steals only once.” Or twice, in this case.

quackdoc210707So how do you run a billing scam on the nation’s chief law enforcer? Well, when the BOP’s healthcare system run by a former correctional officer without healthcare credentials, it is apparently not that hard. The Marshall Project reported Thursday that the senior official responsible for overseeing health care, safety, and food service in all of the BOP’s 122 facilities is Michael Smith. Mr. Smith (don’t call him “Dr.”) is a community college dropout who started his career as a CO in 1997. Smith directs three national program areas: medical, environmental and safety compliance/occupational health, and food service.

“I would seriously question his understanding of science, but he was a nice guy,” said Bill Axford, union president at FMC Rochester, where Smith previously worked as an associate warden, told The Marshall Project. Axford said when he once raised concerns with Smith that radon, an odorless radioactive gas that can cause lung cancer, could pose a danger to parts of the prison, Smith initially dismissed the potential threat, telling Axford that “radon’s not real.” Axford said that on another occasion, Smith told him that sunscreen, not the sun, caused skin cancer.

Junk Science210707Union leaders, prison health care workers, and advocates for prisoners’ rights said it is troubling that the people leading the BOP Health Services Division during the COVID-19 crisis lacked medical licenses. Nearly 50,000 federal prisoners tested positive for COVID-19 as of last week, and at least 258 have died. The BOP came under fire last year from politicians and union leaders for pressuring guards to come to work sick, failing to follow its own pandemic plan, and buying knock-off N-95 masks. “They spent $3 million buying UV portals,” one official added. “They said these killed the coronavirus — but they weren’t FDA-approved.”

“This is why our agency is broken,” said Joe Rojas, a national union leader who works at FCC Coleman. “You have people who are unqualified and you have a medical pandemic, but the leadership has zero medical background.”

“A great many of the people who ever had COVID, they were never tested,” complained Dr. Homer Venters, a former chief medical officer of the New York City jail system who inspected health conditions in prisons around the country over the past year, some as a court-appointed expert. “In most prisons, it ran through these places like wildfire.”

One man housed at a low-security federal prison compared the BOP’s public data to what he was seeing inside. At least half of his unit fell ill, he said, but the Bureau’s data didn’t reflect that.

“For the first year of the COVID, they never tested anybody in my institution unless they had a fever,” an unidentified BOP prisoner told the Associated Press. “The easiest way to not have a positive at your institution is to not test anybody.”

Sitdown210707In the pandemic’s early days, the AP said last week, testing within the BOP was limited, and staff members at some prisons were told there was no need to test inmates. The DOJ Inspector General found that, at some facilities, inmates who tested positive were left in their housing units for days without being isolated.

The concern is not just academic. The highly transmissible COVID-19 Delta variant is now in every state, and is set to cause another COVID-19 surge. The Atlantic last week said, “Vaccinated people are safer than ever despite the variants. But unvaccinated people are in more danger than ever because of the variants. Even though they’ll gain some protection from the immunity of others, they also tend to cluster socially and geographically, seeding outbreaks even within highly vaccinated communities.”

COVIDvaccine201221As of last Friday, 53.5% of inmates and 52.0% of staff were vaccinated. One BOP union official, who has not taken the vaccine yet, said, “I don’t trust the agency. I’m not putting my health and safety in the hands of the BOP.” As for the unvaccinated inmates, Dr. Venters told the district court hearing litigation over FCC Lompoc that many inmates who had refused the vaccine “reported that despite having questions about the vaccine and their own health issues, these questions were not addressed during the vaccine offer or afterward… The CDC has entire toolkits and guidance documents designed to increase vaccine update, but the basic foundation of these efforts is engaging with patients… Many of these high-risk patients were initially offered the vaccine 3 or 4 months ago, and the insistence by BOP leadership that their very valid and predictable questions and concerns go unaddressed during this time significantly increases the risk of preventable death from COVID-19.”

Dept. of Justice, Prison Health Care Provider Naphcare Agrees to Settle False Claims Act Allegations (June 25, 2021)

Settlement Agreement between DOJ and NaphCare (June 25, 2021)

The Marshall Project & NBC News, Prisons Have a Health Care Issue — And It Starts at the Top, Critics Say (July 1, 2021)

Chicago Sun-Times, Despite COVID’s spread in prisons, there’s little to suggest they’ll do better next time (June 30, 2021)

The Atlantic, The 3 Simple Rules That Underscore the Danger of Delta (July 1, 2021)

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

– Thomas L. Root

A Couple of Odds and Ends – Update for July 2, 2021

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

shorts210702WE’VE GOT THE SHORTS

COVID Numbers: The BOP reported 31 inmates and 137 staff sick with COVID as of yesterday. The virus was still in 64 institutions. As of last FridaY, the agency said 51.9% of its staff and 53.1% of inmates have been vaccinated.

As I have previously reported, no one trusts the BOP numbers.

BOP, COVID-19 Coronavirus

Judge Goes After Marshals: US District Judge Charles Kornmann (DSD) levied criminal contempt charges against three senior US Marshal officials last week arising from his demand to know whether Marshals in his courtroom have been vaccinated against COVID-19.

angryjudge190822The charges stemmed from an incident last month in which the Judge asked a deputy marshal whether she had been vaccinated. When she refused to answer, Kornmann ordered her out of his courtroom. The Marshals responded by removing three defendants awaiting a hearing from the courthouse, in what Judge Kornmann described as a “kidnapping” that disrupted the court’s work.

The US Attorney for South Dakota has refused to prosecute the criminal contempt citations. As of Wednesday, Judge Kornmann had appointed a Rapid City, South Dakota, private attorney to try the case, and the Judge had recused himself. The Judge described the contretemps as follows:

The Department of Justice, acting through the Marshal Service, has apparently adopted a public policy to the effect that DOJ policies may trump lawful federal court orders. This cannot be permitted. Despite some public confusion, this case has nothing to do with requiring anyone to be fully vaccinated.

Josh Blackman, a constitutional law professor at the South Texas College of Law Houston, wrote in the Volokh Conspiracy blog that

recusal seems like an obvious move. This judge has clearly made up his mind. The case is so personal. There is no pretense of objectivity at this point. The case is styled United States of America v. John Kilhallon, et al. But the Plaintiff is not the United States. It is a single judge who abused his discretion. Judge Kornmann makes Judge Emmet Sullivan seem reasonable by comparison.

As for me, I really don’t know who to cheer against in this one. But I am pretty sure I can identify the losers: those federal pretrial defendants sitting in local jails waiting for hearings that will be delayed by this kerfuffle.

Washington Post, Federal judge accuses three senior law enforcement officials of criminal obstruction (June 14, 2021)

Jamestown Sun, South Dakota’s acting US Attorney won’t participate in contempt of court case against US marshals (June 25, 2021)

The Volokh Conspiracy, Update from South Dakota: Judge Kornmann Appoints Special Prosecutor To Try U.S. Marshals For Contempt (June 30, 2021)

– Thomas L. Root