Tag Archives: COVID

The Bad News Bears Visit the BOP – Update for June 8, 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.

LAST WEEK WAS NOT THE BEST  FOR THE BOP

You should understand if Bureau of Prisons Director Michael Carvajal stops reading the news after last week.

herd210609Writing in Forbes, Walter Pavlo explained why the vaccine may not fix the BOP’s COVID-19 problem. “The vaccine was made available to inmates and BOP staff earlier this year. The numbers of vaccinations have not been impressive, which hovers around 50% for both inmates and staff… not a good number,” Pavlo wrote. “However, even if those vaccination numbers increase, a recent study suggests that that might not be enough to control infections in prison.”

As of last Friday, 19,000 BOP staff (51.5%) and 75,150 inmates (49.2%) have been vaccinated. Eighty-five inmates and 130 staff (in 68 facilities) have COVID, with 253 federal prisoners dead.

Pavlo cited an article published in the New England Journal of Medicine (NEJM) that found “even a vaccine with seemingly adequate efficacy, pace, and coverage may be insufficient to alter the fundamental population dynamics that produce high disease prevalence,” such as prisons. This is due to “the extraordinarily high rate of transmission in jails and prisons attributable to rampant overcrowding, inadequate testing and health care, high-volume daily inflow and outflow of staff and detainees, lack of personal protective equipment, and normalized systematic neglect of the welfare of incarcerated people.”

“Vaccination of incarcerated people is important for changing this dynamic, but it is not enough,” the NEJM authors concluded. “We believe that it must be coupled with large-scale decarceration to increase the real-world effectiveness of vaccination, disrupt wide-ranging viral transmission chains, and turn off the epidemiologic pump that puts the health of all at risk from mass incarceration.”

fail200526In a separate article, Pavlo reported “it will take years… to discover the depths of the failures with the BOP response to the COVID-19 pandemic. The Department of Justice Office of Inspector General has released multiple reports on the BOP’s reaction to COVID-19 and those reviews have been quite critical of the agency… One of the most cited weaknesses by OIG has been in the area of staffing, particularly in the availability of medical staff.”

The two BOP correctional officers who lied in their reports about monitoring Jeffrey Epstein when he killed himself in August 2019 got a sweetheart deferred prosecution deal from the government. The New York Daily News last week reported the COs planned to defend themselves as scapegoats for a deeply dysfunctional BOP system had they gone on trial.

Sources close to the pair, as well as insiders at the MDC New York, the Daily News reported, offered possible reasons why the feds backed off of the case. The sources said falsification of documents is common at the jail and throughout the Bureau of Prisons. One source described falsely filling out paperwork as “closer to a norm than an anomaly” in federal lockups.

Finally, a disturbing news release from the BOP last week reports for the first time that Manuel Roach, an inmate at USP Leavenworth, died of COVID – four and a half months ago.

COVIDdeath201001The BOP said Mr. Roach caught COVID last September, but was “converted to a status of recovered following the completion of medical isolation and presenting with no symptoms.” At least, no symptoms for four months, until he died of COVID at the end of January.

The June 2 news release does not explain why it took the BOP another four months to figure out he had died of the pandemic.

Benjamin Barsky, et al, Vaccination plus Decarceration — Stopping Covid-19 in Jails and Prisons (New England Journal of Medicine, April  29, 2021)

Forbes, Even After Vaccine, Federal Prisons Still Have COVID-19 Concerns (May 31, 2021)

Forbes, Office Of Inspector General Critical Of Bureau of Prisons In Extensive Reports (May 31)

New York Daily News, Correctional officers who slept while Jeffrey Epstein hanged himself planned to slam federal prison system at trial (May 31, 2021)

BOP, Inmate Death at USP Leavenworth (June 2, 2021)

– Thomas L. Root

Dog Bites Man: Judge Says NYC BOP Facilities Run By Morons – Update for May 14, 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.

JUDGE SAYS “DISGUSTING, INHUMAN” BOP NYC FACILITIES ARE RUN BY MORONS

moron210514A senior Federal judge who navigated her Manhattan-based court through the pandemic denounced conditions at MDC Brooklyn and MCC New York as “disgusting” and “inhuman” during the sentencing last month of a woman who spent months in solitary confinement after contracting COVID-19.

US District Court Judge Colleen McMahon said in a transcript just obtained by the Washington Post that the facilities are “run by morons.” During the sentencing, McMahon castigated the BOP, saying the agency’s ineptitude and failure to “do anything meaningful” at the MCC in Manhattan and MDC Brooklyn amounted to the “single thing in the five years that I was chief judge of this court that made me the craziest.”

“It is the finding of this court that the conditions to which the defendant was subjected are as disgusting, inhuman as anything I’ve heard about any Colombian prison,” McMahon said on the record, “but more so because we’re supposed to be better than that.”

The BOP responded in a statement that it “takes seriously our duty to protect the individuals entrusted in our custody, as well as maintain the safety of correctional staff and the community.”

plague200406Meanwhile, The Trentonian reported last week that FCI Fort Dix set as COVID-19 record for the worst outbreaks of any federal facility. New Jersey US Senators Bob Menendez and Cory Booker, both Democrats, called on the BOP last month to “prioritize the vaccination program” at FCI Fort Dix. More than 70% of the 2,800 prisoners at Fort Dix have tested positive for COVID-19 since the pandemic began. As of last week, 52% of Fort Dix inmates have been vaccinated.

Also last week, the Legislative Committee of the Federal Public and Community Defenders wrote a 16-page letter to Senate Judiciary Chairman Richard Durbin (D-Illinois) and Ranking Member Charles Grassley (R-Iowa) asking for Congressional action to reform the BOP in areas as varied as inmate healthcare to compassionate release to First Step Act programming credits.

“Although the Biden Administration has taken significant steps to beat back COVID-19 in the community,” the letter said, “individuals in BOP custody remain at high risk. Over a year into the pandemic, they are subject to harsh and restrictive conditions of confinement and lack adequate access to medical care, mental health services, and programming. The improvements to programming promised by the First Step Act  generally stand unfulfilled.”

Most significant was criticism of BOP healthcare that went beyond the pandemic: “Dr. Homer Venters, a physician and epidemiologist who has inspected several BOP facilities to assess their COVID-19 response, identified a “disturbing lack of access to care when a new medical problem is encountered” and is concerned that “[w]ithout a fundamental shift in how BOP approaches… health services, people in BOP custody will continue to suffer from preventable illness and death, including the inevitable and subsequent infectious disease outbreaks.”

COVIDvaccine201221The letter also took aim at the high vaccine refusal rate by BOP staff (currently 50.5% refused), staffing shortages, and the BOP’s poor record on granting compassionate release.

The letter complains that the BOP’s proposed rule on awarding earned time credit “impermissibly restricts an individual’s ability to earn time credits, makes it too easy to lose those credits, and unduly excludes broad categories from the earned time credit system. In short, these provisions kneecap the FSA’s incentive structure and make it less likely individuals will participate in programs and activities to reduce recidivism and increase public safety.” The letter notes that if a prisoner programmed 40 hours a week, it would take more time to earn a year’s credit than the length of the average federal sentence.

The Trentonian, Ft Dix FCI has largest total COVID-19 cases among U.S. federal prisons (May 4, 2021)

Federal Public and Community Defenders, Letter to Sens Durbin and Grassley (May 4, 2021)

Washington Post, Judge says ‘morons’ run New York’s federal jails, denounces ‘inhuman’ conditions (May 7, 2021)

– Thomas L. Root

“Did We Nail That Pandemic, Or What?” – Update for May 6, 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.

TELL US HOW WE’RE DOING

howwedoing210506The Dept of Justice Office of Inspector General announced last week that it would be conducting a second survey of BOP staff and a first survey of inmates to determine how well the BOP performed during the pandemic.

The results of the surveys should be illuminating.

And how are things now? As of last Friday, the BOP said it has given two doses of vaccine to about 35% of all inmates, and about 49% of staff. About 126 inmates are sick with COVID-19, and 164staff, with COVID still present in 67% of facilities, if BOP numbers can be believed.

numbers180327But can the numbers be believed? The Marshall Project and Associated Press, which jointly have been tracking how many people are being sickened and killed by COVID-19 in prisons across the country and within each state since March 2020, have given up on BOP numbers, warning that “our understanding of the full toll of the pandemic on incarcerated people is limited by the Federal Bureau of Prisons’ policy of removing cases and deaths from its reports in recent months. As a result, we cannot accurately determine new cases or deaths in federal prisons, which have had more people infected than any other system.”

Another federal inmate died of COVID last week, this one at FMC Devens. Paul Archambault contracted COVID-19 at the end of December but was declared “recovered” ten days later. The “recovery” label appears to have benefited record-keeping more than Mr. Archambault. Like a number of others before him, he died of the COVID-19 from which he had recovered.

rehabB160812In New York last week, U.S. District Judge Katherine Polk Failla granted compassionate release to an inmate at MCC Manhattan, ruling that a key part of her sentence was addiction treatment and care for other ailments. The judge said the BOP hasn’t provided it to the inmate, who was serving a sentence for a cocaine conspiracy.

“Due to the extreme lockdown conditions at the [Metropolitan Correctional Center] and [Metropolitan Detention Center], the inmate has been unable to receive mental health care, drug abuse treatment, and other important services that the Court envisioned her receiving while incarcerated,” the judge wrote. “The Court believes these services to be critical to her physical and mental health, and to her ability to reenter society as a productive and law-abiding citizen.”

DOJ Inspector General, Surveys of BOP Federal Prison Staff and Inmates (April 28, 2021)

The Marshall Project, A State-by-State Look at Coronavirus in Prisons (April 30, 2021)

BOP, Inmate Death at FMC Devens (April 29, 2021)

New York Daily News, Judge, inmate slam conditions at NYC federal jails in pandemic’s 13th month (April 26, 2021)

– Thomas L. Root

The Week in COVID – Update for April 22, 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 BY THE (DIMINISHING) NUMBERS

The number of BOP staff with COVID fell dramatically last week from 1,254 to 252, but the spike now sweeping the country showed up among BOP prisoners, with the numbers increasing from 208 a week ago Monday to 408 two days ago,  only to drop back to 336 as of today. The BOP says that COVID is still present in 82 facilities, but that is down from 115 a week before.

COVIDvaccine201221BOP Director Michael Carvajal told the Senate Judiciary Committee that all BOP staff had been offered the vaccine, and 51% had taken it. He said 66% of inmates offered the vaccine had taken it. The BOP reported 40,808 inmates have been vaccinated as of last Friday (26.8%), up from 23.04% a week ago, The number suggests that the vaccine has been offered to about 61,800 inmates so far. Carvajal said all inmates would be offered the vaccine by the end of May.

The “pause” in administering the Johnson & Johnson vaccine last week because of two reports of a rare blood disorder is expected to be lifted in the next few days. While Dr. Anthony Fauci has said that the pause should be viewed as a “testimony to how seriously we take safety,” some experts are worried that the pause could lead to increased vaccine hesitancy, particularly in vulnerable populations that might be less likely to trust medical institutions in the first place, such as prisons.

“Vaccine confidence tends to be lower amongst people who have been disenfranchised,” Dr. Wafaa El-Sadr, a Columbia University professor of epidemiology and medicine told ABC News. “Among incarcerated people, that hesitancy may be tied to a historical legacy of doctors experimenting on people in prison.”

fearofvaccination210422At last week’s BOP oversight hearing, Judiciary Committee members expressed concern about the low vaccine acceptance rate among BOP staff. Sen Amy Klobuchar (D-Minnesota) noted that “95% of Mayo clinic doctors have been vaccinated because they don’t want to give it to their patients.” She wondered why BOP staffers were not similarly motivated to protect inmates by getting vaccinated.

ABC News, Prisons postpone vaccinations with Johnson & Johnson shots paused (April 16, 2021)

– Thomas L. Root

Thursday is Hamburger Day – Update for April 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.

BOP DIRECTOR TO BE GRILLED ABOUT COVID, FIRST STEP

hamburger160826Almost every inmate in the Bureau of Prisons system looks forward to Wednesdays, when the nationwide lunch menu serves sandwiches that pass for hamburgers, with a side of fries. But this week, BOP Director Michael Carvajal’s hamburger day may come one day later.

Carvajal will testify this Thursday before the full Senate Judiciary Committee in the first comprehensive BOP oversight hearing since 2019. Politico said last week that principal issues will include how BOP has handled the coronavirus pandemic and how it has implemented the First Step Act. “On both counts,” Politico reported, “the Bureau has drawn bipartisan criticism.”

A BOP statement last week said Director Carvajal “is looking forward to the opportunity to provide the Senate Judiciary Committee with information at the upcoming Oversight of the Federal Bureau of Prisons hearing on the morning of April 15, 2021.” Yeah, I have no doubt of that… like a dental patient eagerly anticipates a root canal without Novocain.

oddcouple210219At the hearing, Carvajal will face Sen. Richard Durbin (D-Illinois) — now the committee chair — former chairman Charles Grassley (R-Iowa), Patrick Leahy (D-Vermont), John Cornyn (R-Texas), Cory Booker (D-New Jersey and Mike Lee (R-Utah), among others. Durbin, Grassley, Leahy, and Lee have been vigorous in their demands that the BOP should do more to move the most vulnerable inmates out of prison because of COVID-19. And Booker is a co-sponsor of the Federal Correctional Facilities COVID-19 Response Act, introduced two months ago to address inadequacies in the BOP’s management of the pandemic. “The Department of Justice’ response to the COVID-19 pandemic has been unacceptable and has placed nearly 2.3 million incarcerated people in danger,” Booker said at the time.

What will the Committee ask Carvajal? Well, it could start with the Director’s past statements about the BOP’s “transparency” on COVID. Carvajal told a House subcommittee in December that “the Bureau has published one of the most detailed and thorough COVID pandemic resource areas in the federal government on our public website at www.bop.gov/coronavirus.”

timebackward210412Is that a fact, Mr. Director? Sure, since April 2020, the BOP has provided a running total of the number of inmates who tested positive for COVID. But two months ago, the total mysteriously started going down. I initially thought that Steven Hawking had been right that the universe may someday contract: maybe it has begun, and time is moving backward. But that was not the case. Instead, the BOP had adopted the view is that if an inmate contracted COVID but thereafter was released, it should be treated as though he or she had never been there. Because the inmate had never been there, then his or her COVID case could not count against the BOP’s total.

Accounting brilliance, Mr. Director! But don’t be surprised if some on the Committee might be so forward-thinking, number-wise, and wonder whether – with enough time – the Bureau’s total number of historic COVID cases might regress to zero.

What’s more, the Bureau’s loose use of the definition of “recovered” might raise Committee doubts. Last week, the BOP announced that two more “recovered” inmates, both at the Springfield, Missouri, Medical Center for Federal Inmates, had died. One, Leonard Williams, contracted COVID in late February, but “on Monday, March 22, 2021,” the BOP said, “in accordance with Centers for Disease Control and Prevention (CDC) guidelines, Mr. Williams was converted to a status of recovered following the completion of medical isolation and presenting with no symptoms. On Saturday, April 3, 2021, Mr. Williams became unresponsive.” He was pretty unresponsive, all right. The EMT crew pronounced him dead before he got to the hospital.

Another inmate, Jaime Benavides, caught COVID in December but was declared “recovered” 10 days later. But “on Thursday, March 25, 2021, Mr. Benavides’ condition worsened and he was transported to a local hospital for further treatment and evaluation.” Committee members may how a “recovered” person’s condition can worsen. After all, he had “recovered!” Mr. Benavides died of his recovery on April 4.

numbers180327The Marshall Project has been reporting a tally of COVID in federal and state prisons every Friday for over a year. Last Friday, it informed readers that its

data no longer includes new cases from the Federal Bureau of Prisons, which has had more prisoners infected than any other system. In early March, the bureau’s totals began to drop because they removed cases of anyone who was released, a spokesman said. Similarly, in early April, the Bureau of Prisons lowered the number of deaths it was reporting among people held in private prisons. As a result, we cannot accurately determine new infections or deaths in federal prisons.

The New York Times noted last week in a report on COVID in prisons that its data were not complete because “the federal prison system and ICE did not regularly provide facility-level data for inmate infections or disclose the number of tests conducted on inmates or correctional staff members.”

Maybe the Committee will ask Carvajal about the BOP’s abysmal staff vaccination rate. Last week, the Federal News Network reported on a number of government agencies whose frontline workers were having trouble accessing vaccines. But, FNN said, “the Bureau of Prisons in the Justice Department is having the opposite problem. BOP says it offered the COVID-19 vaccine to all of its employees, but only 49% took the agency up on its offer. BOP says it can’t require employees to take the vaccine since the Food and Drug Administration hasn’t formally approved them yet.”

As of last Friday, the BOP reported only a very questionable 208 inmate COVID cases, but 1,250 sick staff, a number unchanged in the last two weeks. Committee members might justifiably wonder why the inmate number – which the BOP controls – has dropped so dramatically, while the staff number – which the BOP cannot control – remains so high.

Perhaps the Committee will want to know why the BOP touts that it had put 125,000 shots into arms as of last Friday, yet it reports only 23% of the inmate population has been vaccinated.

plagueB200406But it may just be that the Committee will be interested in some stats The New York Times ran in last week’s COVID in prisons story: Worldwide, two people out of 100 caught COVID. In the US, nine people out of 100 caught COVID. In the BOP, 39 out of 100 prisoners, although the “true count is most likely higher because of a dearth of testing.”

There’s more than Monday-morning quarterbacking to this hearing. The pandemic is not quite done. Researchers are warning that if the B.1.1.7 variant, which is more contagious, becomes more dominant, the nation could experience another peak in cases this summer that may be worse than the January peak.

It is likely that Thursday will be hamburger day for the Director. After all, Politico says he will be “grilled.”

Senate Judiciary Committee Calendar, Oversight of the Federal Bureau of Prisons

Politico, Prison chief to face congressional grilling (April 9, 2021)

S.328, Federal Correctional Facilities COVID–19 Response Act

DOJ, Statement of Michael D. Carvajal, Director Federal Bureau of Prisons (December 2, 2020)

BOP Press Release, Inmate Death at MCFP Springfield (April 7, 2021)

BOP Press Release No. 2, Inmate Death at MCFP Springfield (April 7, 2021)

The Marshall Project, A State-by-State Look at Coronavirus in Prisons (April 9, 2021)

FNN, Frontline feds facing inconsistent access to COVID vaccines (April 6, 2021)

The New York Times, Incarcerated and Infected: How the Virus Tore Through the US Prison System (April 10, 2021)

Insidenova, Spread of new COVID-19 variant may cause another peak in cases this summer, UVa researchers say (April 4, 2021)

– Thomas L. Root

Lawsuits and Voodoo Accounting: Last Week in the BOP COVID Wars – Update for April 1, 2021

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INMATE COVID CLASS ACTION SUITS GO 1-1

habeas_corpusThe class-action suit brought by FCI Waseca inmates challenging that institution’s inadequate response to COVID-19 sputtered to an end two weeks ago, as the U.S. District Court in Minneapolis ruled the women could not “assert a constitutional claim relating to the conditions of confinement” in a 28 USC § 2241 habeas petition.” A circuit split exists on this issue, but the 8th Circuit is on the wrong side of the split, at least insofar as the Waseca inmates are concerned.

The court ruled that if the FCI Waseca petitioner wanted to seek any remedy based on conditions of confinement, they had to bring a civil rights complaint, which would be subject to the Prison Litigation Reform Act. That Act, of course, requires that the inmates exhaust administrative remedies first, a fancy term meaning that they would have to work their way through the Bureau of Prisons byzantine remedy process, presenting their complaints to three different levels inside the BOP (and having those claims rejected, as is the BOP’s habit). The quickest way through the administrative remedy process takes about six months or so, which is a lifetime when inmates are dropping like flies from COVID.

The difference between the circuits is clear in the pending FCI Lompoc suit. Last week, the U.S. District Court in Los Angeles ordered FCC Lompoc to let Dr. Homer Venters, a court-appointed prison epidemiology expert, back into the institution within the next month for a second inspection, with a deadline of May 12 to file his report with the court. In so ruling, the court rejected the BOP’s argument that Venters – who has been unstintingly critical of the BOP’s response to the coronavirus epidemic – is not a neutral expert.

The Lompoc class action habeas corpus action is set for a hearing on summary judgment motions on June 15th.

numbers180327The BOP’s COVID numbers continued to fall last week. As of Friday, the BOP reported 394 inmate and 1,265 staff COVID cases systemwide. It’s still everywhere, with active cases in 119 BOP facilities. With 72% of the inmate population tested, the positivity rate is still over 43%.

The BOP reported that as of the end of last week, 15.3% of inmates and 45.4% of staff have been vaccinated, while at the same time claiming in other stats that it has delivered over 99,000 doses into arms.

The numbers don’t add up, but paying too much attention to BOP COVID numbers simply confuses. For instance, last week, The Marshall Project, which has reported weekly on COVID in prisons for months, noted that “while new infections in prisons have dropped in recent months from their highest peaks in mid-December, this data no longer includes new cases from the Federal Bureau of Prisons, which has had more prisoners infected than any other system. In early March, the Bureau’s totals began to drop because they removed cases of anyone who was released, a spokesman said. As a result, we cannot accurately determine new infections in federal prisons.”

unperson210401It’s pretty slick. Up until February 24, the BOP reported the total number of inmates who had tested positive for COVID-19, a running number that has only increased over time. But since February 24, the BOP has been changing the number daily by adding new cases while subtracting inmates who had tested positive in the past but who were no longer in custody. This accounting legerdemain has let the BOP understate the number of inmate cases by 1,115 through the end of March, which has changed the positivity rate by a point, from 43.77% (had those inmates remained on the rolls) to 42.75% without them.

Inmates become uninmates. How Orwellian…

And sometimes, the BOP doesn’t get to count COVID cases as active at all. Last week, an inmate at USP Florence died of COVID, but never tested positive for the disease in life. Only after his death did pathology determine he had died of undiagnosed COVID. No one knows for sure how many inmate COVID cases were simply never accounted for.

The BOP has not yet reported on how many inmates being offered the vaccine have not received it. However, a Kaiser Health News report last week, noting that 38% of Danbury inmates offered the vaccine rejected it, suggested that inmate reluctance might be because inmates believe that institutions have done a poor job of pandemic: “Inmates pointed to numerous COVID deaths they considered preventable, staffing shortages and guards who don’t wear masks. While corrections officials defended their response to COVID, [one inmate] said he’s apprehensive about how the department handles ‘most everything here recently,’ which colors how he thinks about the vaccines.”

Malcom v. Starr, Case No 20-2503, 2021 U.S. Dist. LEXIS 45387 (D. Minn. March 11, 2021)

Order, ECF 191 in Torres v Milusnic, Case No CV 20-4450 (C.D. Cal. March 22, 2020)

Mankato Free Press, ACLU lawsuit against Waseca prison dismissed (March 23, 2021)

Lompoc Record, Trial date approved in Lompoc prison COVID-19 class-action lawsuit; second inspection authorized (March 27, 2021)

The Marshall Project, A State-by-State Look at Coronavirus in Prisons (March 26, 2021)

BOP, Inmate Death at USP Florence (March 24, 2021)

Kaiser Health News, Inmate Distrust of Prison Healthcare Fuels Distrust of COVID Vaccines (March 25, 2021)

– Thomas L. Root

The Short Rocket – Update for March 26, 2021

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SOME BRIEF ITEMS FROM LAST WEEK…

rocket190620Senators Want BOP COVID Deaths Investigated: Twenty-two Democrat senators asked the Justice Department inspector general on Thursday to review all of these deaths. “Although BOP investigates each case involving the death of an individual in their custody, these one-off reviews of each individual COVID-19-related death may not be sufficient to determine system-wide failures in care across the entire federal prison system,” they wrote. “A comprehensive review would not only provide a full accounting of the circumstances surrounding each individual loss of life but would also help policymakers establish whether the appropriate BOP policies were in place and being followed in each case, as well as whether new policies or practices should be implemented to reduce risk during the current pandemic and to prevent similar outbreaks in the future.”

Letter to Michael Horowitz from Sen. Elizabeth Warren and others (March 18, 2021)

BOP Launches Newsletter: The BOP Reentry Services Division announced last week it has launched a national inmate newsletter “to enhance communication with the inmate population.” Entitled “Reentry Quarterly,” this publication includes a variety of articles focused on reentry resources for a diverse audience with a goal of providing something meaningful for every inmate. Topics have included post-release housing, inmate discipline, financial responsibility, Medicare, anger management, education, drug treatment, career/work, and parenting.

BOP, Bureau Introduces National Inmate Newsletter (March 18, 2021)

numberone210326Immigration Offenses Are Number 1 in 2020: Immigration offenses, followed by drug trafficking, were the most common crimes sentenced in federal courts last year, according to a US Sentencing Commission issued last week.

Reflecting the Trump administration’s crackdown on undocumented immigrants, immigration violations alone accounted for 41% of the caseload, a slight uptick from 38% the previous year, the USSC said in its annual report.

The majority of those sentenced were Hispanic and just over 46% of the Hispanics were non-US citizens.

The Crime Report, Immigration Cases Took 41% of Federal Caseload in 2020 (March 16, 2021)

COVID News: The BOP vaccinated 2,481 inmates last week, bringing the total to 11.3% of the inmate population. During his testimony on March 18, BOP Director Michael Carvajal told the House Subcommittee on Commerce, Justice, Science and Related Agencies said that 100% of inmates will have been offered the vaccine by July 2021.

According to Carvajal, home confinement has been successful. Only 21 people sent home have been returned to prison, and only one of those for new criminal conduct. The others were sent back for violations of conditions.

House Subcommittee on Commerce, Justice, Science and Related Agencies, COVID Outbreaks and Management Challenges: Evaluating the Federal Bureau of Prisons’ Pandemic Response and the Way Forward (March 18, 2021)

BOP, COVID-19 (March 19, 2021)

– Thomas L. Root

Despite the Hoopla, Under 10% of BOP Inmates Are Vaccinated – Update for March 16, 2021

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VACCINATIONS CRAWL AHEAD

COVIDvaccine201221The BOP claimed the lowest number of inmate COVID cases yesterday (621) since April 23, 2020, but with the pace of new inmate tests slowing to a crawl, the agency isn’t finding what it isn’t looking for. Staff cases remain as high (at 1,392) as they were the last week of November, and COVID is still present in 124 institutions of thew BOP’s 128 facilities.

The BOP’s vaccination numbers are climbing, but ever so slowly. The first inmates felt the needle in December, but 90 days later, only 9.7% of the inmate population has been inoculated (up from 6.6% a week ago). At this point, 44% of the BOP staff has taken the shot (up from 41% a week before).

Don’t let anyone say BOP employees don’t contribute to their communities. Last week, The Villages, Florida, News reported, “On the day when seven more local COVID-19 deaths were reported, statistics from the BOP showed that 8.55 of cases among staff members across the country are at the massive prison facility in Coleman – just outside the confines of the southern portion of The Villages.”

I have previously expressed skepticism over the BOP’s public numbers of inmates “recovered” from COVID-19. It appears I have company. In United States v. Mathews (reported on yesterday), Judge Karen Nelson Moore noted that “according to the BOP and the Department of Justice, in the federal prison system, 1,804 incarcerated persons have COVID-19, 45,542 have ‘recovered’ from COVID-19, and 222 have died from the virus.” The quotation marks with which she bracketed the word ‘recovered’ suggest the judge has the same trouble accepting the BOP’s reported number as authoritative that many others have.

A New Jersey news outlet reported a story with an all-too-familiar ending. When inmate Dominick Pugliese finally won his CR motion in February, the former Ft Dix inmate was already nearly dead. Dom had told the court in repeated motions that COVID could place him in greater danger of having a serious illness due to his asthma and hypertension, according to court documents.

notsick210316Prosecutors naturally opposed Dom’s motions, saying he had not served enough of his sentence and questioning the seriousness of his medical issues. By the time Dom was finally released – after repeatedly being turned down – his lawyer told the court that Dom was on a ventilator, no longer respond to verbal or tactile stimuli. Medical staff described his condition as “‘extremely grave,’ with a 78% likelihood of mortality,” counsel said. “The defendant, Dominick Pugliese, is dying.”

The judge finally agreed to release Dom, holding that “the severity of his condition suggests that at best he may be facing prolonged hospitalization and rehabilitation.” That turned out to be optimistic. Dom died on March 6. The good news for the BOP, of course, is that its bean counters did not have to add his death to the current 240-deceased inmate tally.

Villages News, 8.5 percent of COVID-19 cases among federal prison staff at Coleman facility (March 8, 2021)

NJ.com, 2 inmates begged for release from federal prison in N.J. where coronavirus raged. They both died of COVID. (March 13, 2021)

– Thomas L. Root

Any Friend of Bill is a Friend of Mine… – Update for March 15, 2021

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WHAT ARE THE ODDS?

By some accounts, as many as 10,000 motions for sentence reduction (compassionate release) under 18 USC § 3582(c)(1)(A)(i) because of the COVID-19 pandemic have been filed in the past year. Data regarding grants have been hard to come by, but estimates range from 500 to 1,000 compassionate release motions have been granted.

presjudgeCR210315A Georgetown University study made available last week studied over 4,000 compassionate release decisions issued since last April, comparing the rate of compassionate release grants to the ideology of the judge. The indicator used for the judge’s ideology – not a perfect correlation, probably, but a reasonable compromise – was the identity of the President who appointed the jurist. Obama, the reasoning goes, probably appointed relatively few John Birch Society members to the bench, just as Trump probably avoided card-carrying socialists.

Of the 4,077 decisions studied by the author, Victoria Finkle (an economist and financial journalist turned law student), 17.1% were granted. People with judges appointed by Bill Clinton – remember the FOBs? – did the best at 24.9%, while people with George W. Bush-appointed judges fared the worst at 8.8%. Obama judges granted 20.9%, Trump’s judges only 9.3%.

An unreported 6th Circuit decision last week garnered a lot of legal press attention, as judges took potshots at each other whether COVID-19 data from The Marshall Project, a criminal justice advocacy group that has been out front on reporting on COVID in prisons. But the judges’ spat is not what makes the opinion interesting.

Kwame Mathews, who has multiple sclerosis, filed for compassionate release. His district court turned him down, finding that the “possibility of contracting COVID-19” and multiple sclerosis do not fit into the four extraordinary and compelling circumstances set forth in USSG § 1B1.13, that Kwame “would be a danger to others and the community if released” per § 1B1.13(2). The district court depicted Kwame’s motion as arguing that “the spread of COVID-19 throughout the nation qualifies as a compelling and extraordinary circumstance” and did not address the situation at FCI Terre Haute. “Equally troubling,” the Circuit said, “is the district court’s treatment of Kwame’s multiple sclerosis. The court found without any substantiation that Kwame failed to assert that he has “a serious physical or medical condition or a serious functional or cognitive impairment that prevents him from providing self-care” and suggested that Kwame does not have “an actual medical condition.”

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Noting that there is no cure for multiple sclerosis and that Kwame’s condition is unlikely to improve, the 6th said multiple sclerosis certainly qualifies as an ‘obvious’ serious medical need. “Notified that someone was suffering from multiple sclerosis, an objective layman would deem the condition serious,” the Circuit said. “Among other things, the condition can cause serious and permanent nerve damage that can lead to permanent disabilities.”

Kwame did not get compassionate release because – as in the case discussed next – his criminal history and sentence length argued against it. But the Circuit clearly said that a medical condition does not have to be on the CDC’s list in order to be an extraordinary and compelling reason for a COVID release.

notefrommom210315Johnny Tomes filed for compassionate release, producing a note from his parents that he had asthma. The district court turned him down, holding that USSG § 1B1.13 limits the “extraordinary and compelling reasons” for compassionate release to just a few situations and that John’s poorly documented asthma wasn’t one of them. Johnny hadn’t gotten COVID-19, the district court observed, and the BOP was taking precautionary measures to prevent an outbreak. Thus the district judge reasoned (and I use that term advisedly), John couldn’t prove the BOP would not be able to take care of him if he got sick.

Last week, the 6th Circuit reluctantly affirmed the decision. Although it was wrong to hold § 1B1.13 was binding on John’s case, the district court had also found that John’s extensive criminal history and the fact he had only done a few years of his 20-year sentence were 18 USC § 3553(a) sentencing-factor reasons arguing against compassionate release. Noting that “district courts may deny compassionate-release motions when any of the three prerequisites listed in § 3582(c)(1)(A) is lacking,” the Circuit said it “can affirm a court’s denial of a defendant’s compassionate release motion based on the court’s consideration of the § 3553(a) factors alone.”

Finkle, Victoria, How Compassionate? Political Appointments and District Court Judge Responses to Compassionate Release during COVID-19 (January 22, 2021) 

United States v. Mathews, Case No 20-1635, 2021 U.S. App. LEXIS 6944 (6th Cir. March 8, 2021)

Law & Crime, ‘Absolutely Savage’ Clinton-Appointed Circuit Judge Calls Out Trump-Appointed Colleague in Nearly Full-Page Footnote (March 8, 2021)

United States v. Tomes, Case No 20-6056, 2021 U.S. App. LEXIS 6773 (6th Cir. March 9, 2021)

– Thomas L. Root

BOP Solves COVID Problem By Not Looking For It – Update for March 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.

BOP RUNS A REVERSE ON COVID TESTING


The BOP COVID numbers kept plummeting last week, ending the day yesterday with 783 sick inmates, down 46% in a week. But, strangely enough, staff COVID numbers remain stubbornly high at 1,569, nearly at the level of a week before. COVID is still in 126 BOP facilities.

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For over 10 months, inmate COVID cases always exceeded staff cases, once by a factor of five. But on Feb 11, the number of staff cases passed the number of inmate cases for the first time. Last Friday, it was 100% higher.

This may be why: Last April, the BOP warned its increased inmate testing program would “increase the number of COVID-19 positive tests reflected on the BOP’s… public website.” Now, someone at Central Office has figured out that the obverse is equally true: less testing decreases the number of inmate COVID cases.

From Aug 1 through Feb 15, the BOP averaged 331 tests a day. But since Feb 15, the testing rate has fallen dramatically. Last week, the daily average was 44 tests a day. Yesterday, the BOP reported only 32 inmate tests in the entire system.

It’s not like the BOP has run out of people to test. Its own numbers show that about 45,000 inmates have never been tested. The current positivity rate of 44% – meaning that 44 out of 100 inmates tested had the virus – suggests about 20,000 undetected cases are still in the system.

covidtest200420The BOP does not control the staff COVID numbers: staffers get their own tests. So the inmate number, which the BOP controls, keeps falling. The staff number it does not control continues to reflect reality.

The BOP’s numbers last Friday showed that 41% of the staff have gotten the COVID vaccine, while only 8.4% of inmates have been inoculated. Only 72% of all BOP facilities report receiving the vaccine, with FCI Marianna having the highest percentage of inmates vaccinated, 53.5%, while three reporting facilities – Seatac, Miami, and Devens – report no inmates have taken the shot. A total of 2,233 inmates (1.5% of all inmates) were vaccinated last week.

The BOP told a Connecticut federal court last week (in a case involving FCI Danbury) that inmates who decline vaccinations without a documented medical reason will not be given further consideration for CARES Act home confinement. The BOP said it would consider home confinement for inmates who accept vaccinations, up until the time they are fully inoculated (usually two weeks after receiving the second dose).

return161227An article in The Regulatory Review argued the Dept of Justice’s January legal opinion that people in home confinement had to be recalled to federal prisons after the pandemic ended is flawed: “What the CARES Act limits to the covered emergency period is the Bureau Director’s authority to lengthen the permissible amount of time that people can spend in home confinement. Once a person’s home confinement period is properly lengthened by the Bureau — during the emergency, when the Bureau has the authority to do so — nothing in the law requires that someone’s period of home confinement must be shortened once the pandemic is over. The statute only limits when the Bureau of Prisons has authority to move people into home confinement for longer durations of their sentence.”

Finally, the Bureau of Prisons Reform Caucus, which started with a couple of congressmen last fall, has added to its membership and purpose. Now with at least eleven congressmen and women as members, the Caucus issued a series of statements last week on its purpose and plans. Caucus chair Fred Keller (R-Pennsylvania) said, “This pandemic has brought to light many failures in the BOP’s operations, including detrimental inmate transfer policies, staffing shortages, and agency retention issues. The various backgrounds and experiences of the members of this caucus will enable us to better tackle these issues on behalf of the American people.”

Press Release, BOP Expands COVID-19 Testing (Apr 24, 2020)

Associated Press, Inmates refuse inoculations in Connecticut federal prison (March 3, 2021)

The Regulatory Review, The Justice Department Should Preserve Home Confinement (March 1, 2021)

NorthCentralPA.com, Bureau of Prisons Reform Caucus releases series of statements on future plans, accountability (March 5, 2021)

– Thomas L. Root