Tag Archives: COVID

CARES Act Extended, But Does the BOP ‘Cares’? – Update for March 1, 2021

Leave a comment

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

COVID AND CARES ACT HOME CONFINEMENT TO GO ON… FOR NOW

caresbear210104CARES Act Re-upped, As If the BOP Cares: The CARES Act, passed in March 2020, dumped truckloads of money on the coronavirus pandemic. More important that piles of dough (for our purposes, at least), Section 12003 authorized the Federal Bureau of Prisons to place inmates in home confinement as long as the nation is under a COVID emergency and the Attorney General has determined that the “emergency conditions will materially affect the functioning of the Bureau.” President Trump declared a COVID emergency under the National Emergencies Act a few weeks before CARES passed, and Attorney General William Barr made the materiality finding on April 4th.

Under the National Emergencies Act, an emergency only lasts a year unless the President extends it. That means the emergency would have ceased today, and with it, the CARES Act authority would expire.

Last week, President Biden extended the COVID emergency without specifying an end date (which is common). In essence, the COVID emergency will be over with Biden says it is. Biden wrote, “The COVID-19 pandemic continues to cause significant risk to the public health and safety of the Nation. More than 500,000 people in this Nation have perished from the disease, and it is essential to continue to combat and respond to COVID-19 with the full capacity and capability of the Federal Government.”

One could reasonably infer from the President’s statement that the “full capacity and capability” of the government would include continued BOP use of its CARES Act home confinement authority. Yet, as the New York Times observed last week in a scathing article about the BOP’s failure to use home confinement at FCI Danbury, “just 7,850 of the 151,735 people serving federal sentences right now have been granted home confinement — about 5%. State prison populations have fallen by 15% since the pandemic began, according to the Prison Policy Initiative, but not because inmates are being released to home confinement. Instead, many state prisons simply have stopped accepting transfers from county jails.”

The BOP website prefers to trumpet that “the total number of inmates placed in home confinement from March 26, 2020 to the present (including inmates who have completed service of their sentence) is 22,158.” But it turns out that most of those people were placed there in normal course by halfway houses or under elderly offender home detention. The CARES Act home confinees have not constituted much more than a dribble.

home210218The Times reported that “Danbury was singled out for prompt action” by Barr last April, “because it had seen an outbreak, [but] only about 100 inmates have been granted home confinement so far, many as recently as December. At least 550 are still under consideration, most of them convicted of nonviolent offenses like fraud or drug possession.”

It’s not like the problem is limited to Danbury, either. A California federal court found last summer that “[d]espite… the existence of emergency conditions facing the BOP as the result of the pandemic… there is no evidence Respondents are prioritizing their use of statutory authority under the CARES Act to grant home confinement to Lompoc inmates… or giving due consideration to inmates’ age or medical conditions in evaluating eligibility of home confinement.” And a New York federal court found that “rather than attempt to use home confinement, furloughs, and compassionate release as tools to reduce the density among the most vulnerable inmates, the prison chose to not pursue that path at all until well after the initial outbreak had subsided.”

In fact, at Danbury, the BOP settled a class action lawsuit by promising to expedite release of inmates to home confinement. But five months after the BOP and Danbury warden made the deal, a Connecticut federal court found they had “breached the provision of the Settlement Agreement requiring that they ‘endeavor to release individuals approved for home confinement to home confinement within 14 days of the approval decision.”

About 48,000 of the 105,000 inmates the BOP has tested (still, a year later, only 69% of its inmates have had the nose swab) have contracted COVID. This is despite the BOP’s self-lauded “multiphase action plan” to protect inmates and staff from COVID-19. A Pennsylvania federal court dryly observed that “[t]he government’s assurances that the BOP’s ‘extraordinary actions’ can protect inmates ring hollow given that these measures have already failed to prevent transmission of the disease.” The agency’s slow-walk implementation of CARES Act placement cases seems to be cut from the same cloth.

The COVID Curve: The BOP continued last week to report fewer COVID cases. Last Friday’s total of 1,414 was down 29% from the week before. Staff cases remain stubbornly high, 1,622 (down only 3% from the week before). COVID remains present at 128 facilities, up two from last week, but there have been no reported deaths in the last 7 days.

As of Friday, the BOP reported vaccination data for 78 facilities. It reports that about 34% of its 36,000 staff have been vaccinated, and 6.9% of inmates have gotten the shot (up from 5.3% last week). The number of vaccine doses the BOP says it has distributed suddenly froze last week at 58,300, after climbing steadily since January. This suggests the BOP is out of additional doses until it gets its next distribution.

comparison210228

Plotting the rise and fall in inmate COVID numbers against the national ebb and flow shows the graphs are nearly a perfect fit. This is troubling, because late last week, Dr. Rochelle Walensky, director of the U.S. Centers for Disease Control and Prevention warned that with relaxing restrictions and a spread of variant viruses, the declines since January “may be stalling, potentially leveling off at still a very high number. We at CDC consider this a very concerning shift in the trajectory.” The nation had an average of about 66,350 new daily coronavirus cases a day over the last week, higher than the week before which was 64,000 new cases a day.

If national numbers rise again, history suggests the BOP numbers will, too.

Equally troubling is the fact that BOP staff COVID cases have not shown the kinds of decline that inmate and national numbers have. Beyond that, it has taken the BOP over two months to get a mere one-third of its staff vaccinated. The likelihood that staff is the primary vector for spreading COVID inside facilities thus remains high.

Federal Register, Continuation of the National Emergency Concerning the Coronavirus Disease 2019 (COVID-19) Pandemic (86 FR 11599, Feb 26, 2021)

CARES Act (Mar 26, 2020)

New York Times, Vulnerable Inmates Left in Prison as Covid Rages (Feb 27, 2021)

Torres v. Milusnic, 472 F.Supp.3d 713 (C.D. Cal. July 14, 2020)

Fernandez-Rodriguez v. Licon-Vitale, 470 F.Supp.3d 323 (S.D.N.Y. July 2, 2020)

Whitted v. Easter, Case No. 3:20-cv-569 (D.Conn. December 11, 2020), 2020 U.S. Dist. LEXIS 232843

Wilson v. Williams, 961 F.3d 829 (6th Cir. 2020) (Cole, C.J., dissenting).

United States v. Rodriguez, 451 F.Supp.3d 392 (E.D. Pa. 2020).

Los Angeles Times, New fears of next coronavirus wave as case declines slow and variants grow (February 27, 2020)

– Thomas L. Root

BOP COVID Cases Looking for Bottom, But Vaccinations Lag – Update for February 25, 2021

Leave a comment

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

BOTTOM FOUND IN COVID CASES?

COVIDvaccine201221The BOP may have bottomed out on inmate COVID cases. Yesterday’s total of 1,526 was down 13% from the week before. Staff cases notched down from 1,683 to 1,657 by midweek, only to climb again to 1,661. COVID remains present at 128 facilities, with a questionable total of 236 deaths (recall how three dead federal prisoners in private facilities miraculously came back to life a few weeks ago).

As of yesterday, the BOP reported vaccination data for 75 facilities, about 59% of its locations. It reports that about 32% of its 36,000 employees have been vaccinated, a slight increase from two weeks before, when it reported 28% had taken the shot. The number of inmates getting vaccinated – only 4.6% of the population two weeks ago – has inched upward to 6.1% as of yesterday.

The slow pace in vaccinations (about 2,500 staff and inmates in one week) suggests that the agency is short of vaccine until the next round is distributed. When that will happen has not been announced. The BOP has even left the Centers for Disease Control and Prevention in the dark: FEDWeek reported last Tuesday that “CDC data show that the Bureau of Prisons has administered both needed doses to some 17,000 persons and the initial dose to another 13,000, but that does not break out how many of those have gone to its employees vs. prisoners.”

numbers180327The CDC numbers vary widely from the totals shown on the BOP website, but that’s hardly surprising. Numbers on one page of the website (allegedly over 53,000 doses administered) vary dramatically from numbers broken out by institution (20,712 total inoculations). Head-scratching, to be sure.

Huffpost last week picked up on what I have been reporting since last summer, how the BOP has declared inmates to be “recovered,” only to have them then die. Huffpost reported on Joseph Fultz, a Terre Haute inmate who contracted COVID last month:

Then, exactly 14 days later, the BOP added him to the ‘recovered’ column,” Huffpost reported. “But Fultz, a 52-year-old man with a serious heart condition and epilepsy, had not recovered. On Feb. 8, a month to the day after his arrival in Terre Haute, he died of COVID-19-related illness, his unresponsive body discovered in his cell. Fultz’s death illustrates the incomplete and often misleading nature of COVID-19 data released by correctional facilities, and underscores how little we understand about the damage the virus is wreaking behind bars.

The CDC announced last week that seven domestic variants of the COVID virus have been identified, as well as the three foreign variants from UK, Brazil and South Africa already found. Michael Osterhelm, director of the Center for Infectious Disease Research and Policy at the University of Minnesota, told CBS News, “The next 14 weeks I think will be the worst of the pandemic. People don’t want to hear that. But if we look at what these variants are doing, particularly this one from the United Kingdom, and see what it did in Europe, see what it’s done in the Middle East –it’s now beginning to start that here in the United States – we are going to see that unfold.”

On Saturday, FCC Coleman reported 119 COVID cases just among staff, according to local press reports. Coleman reported that 62% of its allotted vaccine went to inmates, suggesting that a majority of staff refused inoculation.

plagueB200406Perhaps nowhere were conditions more wretched last week that at FMC Carswell, the BOP’s only female medical facility. While Carswell retained electricity, the heat never kicked on and only cold water was available from Sunday to Monday evening, the Ft. Worth Star-Telegram reported. As of Tuesday, 31 women officially still had COVID-19,” the paper said, “although many more were still sick from the virus, family members and women at the prison said.”

FEDWeek, Concerns Remain about Pace of Vaccinations for Federal Employees (February 16, 2021)

Huffpost, He Got COVID In Prison. The Government Said He Was ‘Recovered.’ Then He Died. (February 19, 2021)

CBS News, Epidemiologist on new CDC school guidelines, COVID-19 variants and vaccine (February 15, 2021)

Villages-News, 20 more local COVID-19 deaths as outbreak hits staff at Coleman federal prison (February 20, 2021)

Ft. Worth Star Telegram, Women, some sick with COVID-19, left ‘freezing’ without heat at Fort Worth medical prison (February 16, 2021)

– Thomas L. Root

COVID Miracles (Performed by Statisticians) – Update for February 8, 2021

Leave a comment

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

A COUPLE OF COVID MIRACLES… OTHERWISE, A BAD WEEK FOR THE BOP

Despite what was a pretty bad run last week, PR-wise, for the Federal Bureau of Prisons, we were privileged to witness a couple of miracles of Biblical proportion.

Screen Shot 2021-02-08 at 9.03.53 AM

First, the numbers: The BOP continues to write down the COVID-19 inmate totals. As of last Friday, the BOP reported 2,273 sick inmates, down 43% from the week before. Curiously, the agency reports 1,729 sick staffers, a mere 3% reduction from the week before. Cynics might say that when you control the patients, you can say when they’re recovered and when they’re not. Controlling employees who go home at the end of each shift… not so easy,

At the end of the week, the BOP reported 229 federal prisoner deaths, an increase of five. The BOP says it has tested 68% of all inmates at least once, with a whopping 44.6% testing positive for COVID.

Raisedead210208Now for the miracles: Three federal prisoners housed in private prisons have miraculously come back to life, at least on paper. Last Tuesday, the total number of inmate deaths in the private prisons dropped from 16 to 13 without explanation. The private operators, who are losing their federal contracts, seem to know something about how to cure people of COVID. Or perhaps they’ve taken the story of Lazarus to heart.

Meanwhile, the BOP is starting to provide vaccination information on its website, and – speaking of miracles – as of last Friday, the BOP was reporting that it had received 36,650 doses of vaccine, but somehow administered 2,638 more doses than it had received. The New Testament records that Jesus fed 5,000 people with five loaves and two fishes, and had more left over than he started with. The BOP has apparently replicated that miracle.

The BOP’s detailed vaccination information is woefully incomplete. In its facility-by-facility data, the number of inoculations accounts for only a third of the doses the BOP says it had distributed. Last Friday’s numbers show 7,468 staff (20.7% of all BOP employees) and 5,751 inmates (3.8% of the population) receiving the vaccine. The data only report that vaccines have been administered in 33% of all locations, which clashes with BOP statements several weeks ago . The New York Daily News said lawyers for defendants at MCC New York told it “the vaccine’s distribution at the jail has been haphazard, with some high-risk prisoners still waiting for shots.”

vax210208Other than the miracles, it was a tough week for the BOP. First, FCI Ft Dix Warden David Ortiz, who presided over a COVID-19 explosion at that facility last fall, suddenly was relieved of duty, reassigned to the BOP Northeast Regional Office. You may recall that the BOP uses desks at its regional offices as “time-out chairs” for wardens and other management people on the outs. Last summer, for example,  the BOP sent the FCI Oakdale warden to work on a desk at an office well away from inmates.

Ortiz was “temporarily” replaced by Lamine N’Diaye, the former warden at the MCC New York, who himself was placed on desk duty at the Northeast Regional Office in 2019 while authorities investigation the death of millionaire sex offender Jeffrey Epstein. At the time, Jose Rojas, a BOP union leader and teacher at FCI Coleman, said N’Diaye should be home without pay instead of being reassigned. “I put this on the warden,” he said. “If he would have had common sense and followed policy, we wouldn’t be here discussing this.”

In Chicago, inmates filed a proposed class action suit against the BOP for conditions at MCC Chicago. The suit, Price v. Federal Bureau of Prisons, Case No 1:21-cv-00542, claims the high-rise jail’s “haphazard and insufficient” measures to contain the coronavirus pandemic led to two major outbreaks, endangering people in custody and staff. The suit alleges a lack of cleaning supplies and proper social distancing as well as a “poorly implemented and incomplete” isolation and quarantine process. Officials also allegedly turned “a blind eye” to staff who didn’t wear masks and ignored some people in custody who asked for tests.

As a result, almost 300 MCC Chicago inmates have tested positive for COVID-19, although the lawsuit claims that “the real infection rate was certainly higher” than that.

More210208BOP correctional officers at FCI Mendota sued the BOP in the Federal Court of Claims last week for an extra 25% in pay for the hours they’ve worked during the COVID-19 pandemic. Aaron McGlothin, an FCI Mendota employees union leader, said COs feel particularly strongly about the need for hazard pay because they believe the Bureau of Prisons has not taken the proper precautions to protect them.

“At some point you have to say enough is enough, you have to do what you have to do, and seek outside assistance,” McGlothin said. “If our agency took the proper precautions, we wouldn’t have to deal with this the way we have, and they owe us.”

The Associated Press last week reported that records it obtained showed that the BOP’s string of executions at FCI Terre Haute last December and January “likely acted as a superspreader events… something health experts warned could happen when the Justice Department insisted on resuming executions during a pandemic. The AP said BOP employees carrying out the executions “had contact with inmates and other people infected with the coronavirus, but were able to refuse testing and declined to participate in contact tracing efforts and were still permitted to return to their work assignments… Other staff members, including those brought in to help with executions, also spread tips to their colleagues about how they could avoid quarantines and skirt public health guidance from the federal government and Indiana health officials.”

oops211202Finally, an arrest: A federal grand jury has returned a three-count indictment charging a former BOP CO, Jimmy Lee Highsmith, with sexually abusing three female prisoners at FCI Tallahassee. Highsmith was arrested last Wednesday night. In fall 2019, Florida Sen. Marco demanded the BOP respond to newspaper reports of sexual abuse of female inmates at Tallahassee and FCI Coleman camp. In fact, Highsmith was identified nine months ago by a former FCI Tallahassee inmate as having raped her.

There’s a saying among BOP inmates that many of the COs are “only a uniform change away…” Jimmy has become the illustration for that aphorism.

New York Daily News, Ghislaine Maxwell receives COVID-19 vaccine at Brooklyn federal jail: source (February 2, 2021)

NJ.com, Warden at N.J. federal prison reassigned amid massive COVID outbreak (February 2, 2021)

Albany Times-Union, Jail’s warden reassigned (August 14, 2019)

Chicago Sun Times, Inmates file class-action lawsuit over handling of COVID-19 at downtown jail (January 31, 2021)

The Fresno Bee, California prison employees file lawsuit demanding hazard pay during COVID pandemic (February 5, 2021)

Associated Press, Records show 13 federal executions under Trump administration at Indiana prison likely acted as COVID-19 superspreader (February 5, 2021)

Associated Press, Former corrections officer accused of sexually abusing multiple inmates at Federal Correctional Institution in Tallahassee (February 4, 2021)

– Thomas L. Root

Is BOP Cooking the Books on COVID Numbers? – Update for January 25, 2021

Leave a comment

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

COVID NUMBERS ARE DOWN, BUT ARE THEY RELIABLE?

COVID numbers are down 26% from a week ago, with 3,738 federal inmates in BOP and private prisons sick. The BOP staff numbers remain stubbornly high at 2,005, down only 1% from last week. Deaths are spiking, with 12 more between Jan 15 and last Friday, for a total of 220. The BOP has tested two-thirds of its inmates, with an overall positivity rate of 44%.

BOPCOVID210125The BOP continues to report that large numbers of inmates are “recovered” according to Centers for Disease Control and Prevention Guidelines, despite the fact that the number of “recovered” inmates who subsequently die of COVID keeps increasing. On Thursday, the BOP reported that Shauntae Hill, an FCI Terre Haute inmate whom it had declared “recovered” last September, tested positive for COVID December 12 – 79 days later – and died two weeks ago. Last Friday, the BOP reported that Spencer Sarver, a USP Atlanta inmate who tested positive for COVID last March – but was declared “recovered” on April 23 – never left the hospital, and died ten days ago.

BOPDeaths210125The CDC Guidelines say that “available data indicate that persons with mild to moderate COVID-19 remain infectious no longer than 10 days after symptom onset. Persons with more severe to critical illness or severe immunocompromise likely remain infectious no longer than 20 days after symptom onset.” But nowhere does the CDC say recovered people are cured, but rather only that any virus they are shedding is at a concentration at which “infectiousness is unlikely.”

James Weldon, president of the union local representing BOP employees at FCI Raybrook, last week accused the BOP of not reporting inmate and staff COVID cases after it brought in around 100 new inmates without testing them first. Weldon said the BOP never reported on the 130 inmates and 25 staff who tested positive during the peak of the outbreak two weeks ago.

The BOP reportedly failed to response to the newspaper with a comment.

judge160229The Denver Gazette reported last week that out of two dozen responses to compassionate release motions based on COVID-19 from September through December, federal judges in Colorado only approved three. Besides finding that an inmate’s health condition or COVID at the particular facility was not severe, judges commonly denied requests to those who were not over 65 or had not served at least 75% of their sentences.

In two denials filed by Senior Judge Marcia S. Krieger, she found inmates may be safer from COVID-19 in prison than outside of it, despite the fact that the BZOP infection rate is five times that in the general population. “Release from custody would not ensure that he would not contract COVID-19,” Krieger wrote in one case. “Indeed, his release into the community – to socialize, to work, to shop, etc. – could increase, rather than decrease his risk of contracting the disease.”

BOP, Inmate Death at FCI Terre Haute (January 21, 2021)

BOP, Inmate Death at USP Atlanta (January 22, 2021)

CDC, Duration of Isolation and Precautions for Adults with COVID-19 (October 19, 2020)

Adirondack Daily Enterprise, Union: Prison apathetic about COVID (January 19, 2021)

Denver Gazette, Federal judges in Colorado denied overwhelming majority of requests to release inmates for COVID-19 (January 20, 2021)

– Thomas L. Root

BOP’s Good and Bad At COVID Management – Update for January 19, 2021

Leave a comment

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

COVID – BOP GETS PAT ON BACK, KICK IN PANTS

pat-on-back210119In a self-congratulatory press release issued late last week, the BOP said it has been commended by Operation Warp Speed – the Trump COVID-19 vaccine program – for having been the most efficient agency in the entire government at administering COVID vaccine. According to the CDC, the BOP has used 97% of the doses it has received.

Of course, it helps that the BOP has a captive audience. Not among staff so much: in a troubling report, the BOP said only half of its staff offered the vaccine have taken it. But the inmates… that’s another story. Doses not used by staff at the locations receiving it – about 68 of 122 facilities so far – have been offered to inmates using CDC priorities, and there are plenty of takers. The BOP so far has administered over 17,000 doses of the vaccine, a first dose to about 7,600 staff and 5,500 inmates, and a second dose to about 1,000 staff and 1,100 inmates. In other words, only 24% of staff and 4% of inmates have been vaccinated so far.

As of last Thursday – the last day the BOP bothered to release numbers – 4807 inmates and 2049 staff were reported to be sick with COVID. The BOP has tested two out of three inmates at least once, with a positivity rate that keeps climbing. Currently, 43% of inmate tests come back positive.

Death took no holiday last week as an additional eight inmates died last week. Significantly, two of the deaths – at FCI Jesup and FCI Memphis – were of inmates the BOP has previously declared to be “recovered.”  The BOP is quite quick to declare inmates “recovered” when 10 days pass after a positive teas. The declaration is based on CDC guidance, the BOP says, but is often misapplied, with the agency ignoring any continuing symptom other than a fever. 

FCI Fort Dix, where 321 inmates are still reported to have the virus, is set to get the COVID-19 vaccine next week, according to NJ Advance Media. BOP case management coordinator James Reiser told a court on Wednesday that the prison expects to receive COVID-19 vaccine on Jan 19. It is unclear how many doses the prison will initially receive, Reiser said.

kickinpants210119New Jersey Senators Bob Menendez and Cory Booker and Congressman Andy Kim led members of the New Jersey congressional delegation last week in urging the DOJ Inspector General to expand his ongoing investigation into the BOP COVID-19 response to include its handling of the Fort Dix outbreak.

Finally, a kick in the pants: the DOJ Inspector General last week reported that last April, BOP employees at FCC Coleman were threatened with discipline if they wore personally-acquired masks , and sometimes were sent home on sick leave for wearing such coverings. One complainant reported that a supervisor had said wearing a mask would “scare the inmates,” the OIG report said.

BOP, COVID-19 Vaccination Efforts Commended (January 16, 2021)

New Jersey Advance Media, N.J. prison with worst COVID-19 outbreak in the country set to get vaccine next week (January 13, 2021)

InsiderNJ, Menendez, Booker, Kim Lead NJ Delegation Call for IG Probe into COVID-19 Outbreak at Fort Dix (January 15, 2021)

Orlando Sentinel, Federal prison in Central Florida banned masks for staff as pandemic began, report says (January 14, 2021)

– Thomas L. Root

Light at the End of the Tunnel is an Oncoming COVID Train – Update for December 31, 2020

Leave a comment

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

STILL LOOKING FOR THE PEAK?

Last week, I reported that the Bureau of Prisons’ numbers had dropped 25% from the week before, suggesting that maybe the latest BOP COVID spike had peaked, and recovery was at hand.

BOPCOVID201230

No such luck. As of last Monday, the system’s active cases had jumped 12% from a week earlier, to 7,690 active inmate cases and 1,616 sick staff, COVID in 127 BOP facilities and 188 dead inmates. The number of sick inmates fell yesterday to 6,949, still 11% higher than two weeks ago. As of last night, BOP has tested 64% of all inmates at least once, with a worrisome positivity rate of 40%.

lighttunnel201231Last week, I noted that despite official pronouncements that only BOP staff were getting COVID-19 vaccine, I had received inmate reports that some prisoners had been vaccinated at two Texas facilities and one in North Carolina. Last Tuesday, the BOP told Associated Press that the vaccine had been delivered to four facilities that had been among some of the hardest hit during the pandemic, including FCC Butner. AP quoted a BOP spokesman as saying that while it continued to plan to offer vaccines to full-time staff, “at this time, we can confirm high risk inmates in a few of the BOP facilities in different regions of the country have received the vaccine.” AP noted the BOP did not say how many inmates had been vaccinated, how the inmates were selected, or how many doses of the vaccine the agency had received.

The agency told the AP about half of the staff at each of the four facilities that received the vaccine had been inoculated. The balance was offered to inmates.

COVIDvaccine201221Forbes magazine reported last Monday that “word came from someone who is an inmate in an institution in the mid-Atlantic US that they are on a list to receive the vaccination at the first of the year. The vaccinations represent the first step in curbing the spread of COVID-19 in prisons. The roll-out of the vaccines to inmates will certainly cause a disruption in the number of compassionate release cases and the release of inmates under the CARES Act.” Forbes is a usually reliable publication, but the report – from a single unidentified inmate – is pretty thinly sourced.

As of last night, Fort Dix, Terre Haute, Safford, Pekin, Lexington, Schuykill and Atwater were all reporting more than 200 inmate COVID-19 cases. Another 14 facilities had more than 100 inmate cases.

Every inmate death is concerning, but three last week were especially troubling. An inmate at Talladega died of COVID-19 without ever being diagnosed with the disease or presenting symptoms. A Lompoc inmate had COVID in May and was declared “recovered,” but was hospitalized in August with COVID. He remained there until dying December 15. In a third case, a Memphis inmate with no prior medical conditions whatsoever fell ill on December 2, was hospitalized 10 days later, and died December 19.

Finally, a most unusual compassionate release: After a mix-up by the BOP, a Guam federal judge granted Jesse Cruz’s sentence reduction motion and ordered his immediate release.

Jesse had health issues including post-traumatic stress disorder, degenerative spinal disc disorder, sciatica, sleep apnea and other issues, according to US District Court Judge Frances Tydingco-Gatewood.

release161117There was also an “extremely rare and unique situation” in Jesse’s case: the BOP miscalculated his release date, releasing him from FCI Sheridan on October 14, although his home confinement was not supposed to start until next February. The BOP didn’t give Jesse any medication when he was sent to Guam, even though the FCI Sheridan doctor had ordered he get his medication upon release.

Upon arriving on Guam, Jesse had to quarantine at a government facility. While Jesse was in quarantine, the BOP realized its mistake and had Cruz arrested when he left the quarantine facility.

During a hearing last Wednesday, the Judge learned Jesse hasn’t received any medication at all while incarcerated on Guam, even after Jesse and his wife presented numerous requests for medication and a CPAP machine to the detention facility and the U.S. Marshals. While Jesse’s health conditions would not normally justify compassionate release, the Judge ruled, “the disturbing failure of the BOP to properly calculate his release date from FCI Sheridan has resulted in a total lack of care for Cruz’s ailments.” Jesse “has been forced to serve several months of his sentence at a non-BOP facility while suffering from numerous maladies of the mind and body without respite,” the Judge held.

The Hill, Federal Bureau of Prisons reverses on withholding COVID-19 vaccine from inmates (December 22, 2020)

Greensboro, N.C. News & Record, Reversing course, feds say some N.C. inmates got virus vaccine (December 23, 2020)

Forbes, Federal Bureau of Prisons Starts Vaccination of Staff, Inmates Soon Thereafter (December 21, 2020)

Pacific Daily News, ‘Extremely rare and unique situation’: Sentence reduced for man mistakenly released (December 24, 2020)

– Thomas L. Root

Director Says BOP “Has A Sound Pandemic Plan In Place…” As COVID-19 Spirals Out of Control – Update for December 14, 2020

Leave a comment

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

COURT ORDERS BOP TO HONOR SETTLEMENT, WHILE INMATE COVID CASES INCREASE 30% IN ONE WEEK

Ten days ago, the number of Bureau of Prisons inmate COVID-19 cases passed 5,000. That was a first… but it was nothing compared to last week.

As of last Friday, the BOP reported 7,278 ill inmates (a 30% from the week before),1,716 sick staff (up 9% from last week), COVID-19 in 127 BOP facilities and 167 dead inmates. The BOP has tested 58% of all inmates at least once, with the positivity rate continuing to ratchet up. As of last Friday, 34% of all inmate tests are positive for COVID.

BOPCOVID201214

Recall that on December 2, BOP Director Michael Carvajal told a House Subcommittee that the BOP’s COVID-19 “procedures have proven effective as this is evidenced by the steep decline in our inmate hospitalizations, inmates on ventilators and deaths.” Some feel differently.

Last Friday, a Connecticut U.S. District Court found that the BOP had violated its settlement agreement in a class action of 450 medically vulnerable prisoners brought last spring over COVID-19 conditions at FCI Danbury. The unhappy judge ordered the BOP to release 17 medically vulnerable inmates by 5 p.m. the next day (a Saturday), prohibited the BOP from relying on administrative roadblocks to delay the release of those granted home confinement, and directed the BOP to report to the plaintiffs’ attorneys whenever the agency expects to fail to release inmates granted CARES Act home confinement within 14 days of grant.

The court order followed a long hearing the day before, where the court heard about a new Danbury COVID-19 outbreak and the BOP’s corresponding failure to mitigate the spread of the disease. In one week, the number of Danbury COVID-19 cases went from zero to nearly 50. The plaintiffs said despite the BOP’s promise to check daily for symptoms for the duration of the pandemic, the BOP failed to follow this pledge for two weeks during a surge of the disease around the country.

A July settlement of the lawsuit required the BOP to promptly identify prisoners who are low security risks and have a greater chance of developing serious complications from the virus and release them to home confinement. The settlement called for prisoners to be released within 14 days of being approved. But the plaintiffs’ lawyers say some of them have been waiting nearly three months to be released after being approved for home confinement.

whoyabelieve201214The BOP cited several reasons for the delays in releasing the inmates, including required 14-day quarantines due to the virus and BOP guidelines in releasing inmates to the community. The Court was not impressed.

Meanwhile, in Minnesota, the ACLU last week filed suit alleging the BOP’s FCI Waseca has “failed to respond in any meaningful way to the pandemic.” The ACLU says the prison did not release medically vulnerable people from the prison, where two out of three inmates contracted COVID-19, making social distancing impossible.

New Jersey congressional leaders last week renewed their call to end inmate transfers to FCI Fort Dix. Led by Senators Robert Menendez and Cory Booker (both D-New Jersey), the state’s congressional delegation sent a second letter to BOP Director Carvajal week calling for the end of inmate transfers and asking the BOP to outline its plan for allocating and administering the COVID vaccine.

The BOP had previously instituted a moratorium on all inmate transfers to Ft Dix through Nov. 23 as active cases hit 300. The lawmakers and BOP staff have pointed to the October transfer of inmates from FCI Elkton to Ft Dix as the cause of the outbreak. BOP officials have denied the accusation. The moratorium was not extended, the BOP said last week, despite a previous letter from the state’s lawmakers demanding the moratorium continue until there are no active cases at the prison.

“By resuming transfers of incarcerated individuals into and out of the facility in the midst of a severe outbreak, BOP is putting at risk the lives of both staff and incarcerated individuals,” the lawmakers wrote in the letter.

COVIDheart200720The BOP is seeing a resurgence of COVID at institutions where it had previously been controlled. The virus is again at FCC Lompoc, site of one of the worst prison COVID outbreaks in the country, according to the Santa Barbara Independent. An investigation last summer by the Dept. of Justice Inspector General found that the BOP’s initial response to COVID “failed on a number of fronts and likely contributed to the severity of the outbreak, including staffing shortages, inadequate screenings, and a scarcity of protective equipment.”

As of Friday, Englewood and Loretto each have more than 600 sick inmates, Texarkana and Pekin more than 300 each, five more facilities with more than 200, and 12 more BOP institutions with over 100 active COVID cases.

When a local newspaper asked the BOP about Loretto, a spokesman said the prisons are following accepted guidelines. While declining to address the Loretto situation “due to privacy, safety and security reasons,” the spokesman told the paper, “we can tell you all institutions have areas set aside for quarantine and medical isolation.”

Meanwhile, The New York Times last week criticized the BOP for its management of COVID at FDC Brooklyn. Noting that 55 inmates had tested positive for COVID-19, The Times said, “many months into this pandemic, the Federal Defenders of New York, a legal advocacy group, said officials at the jail aren’t following basic public health guidelines to prevent the spread of the virus, to care for sick inmates or to protect those who are most vulnerable. The reports… are disturbing. Corrections officers, they say, aren’t properly wearing masks, including while interacting with inmates. Sick inmates aren’t receiving proper medical attention and are being placed in cells with healthy individuals. One person incarcerated at the facility told an attorney with the Federal Defenders that severely ill inmates who asked for medical attention didn’t get it.”

A BOP spokesman disputed the Defenders’ claims. Nevertheless, the Times said, “if the conditions are anything like what the Federal Defenders describe, they are an affront to human dignity and a threat to the public health of Americans in and out of the Brooklyn facility.”

lies170310And here’s an interesting glimpse at the BOP’s record-keeping, a factoid that could suggest to reasonable people that the BOP’s numbers cannot necessarily be trusted. A Youngstown, Ohio, news website, reporting on Columbiana County, Ohio, COVID numbers, was trying to derive a number of people recovered from the virus. It noted that FCI Elkton – located in the county – reported “896 incarcerated people and 54 employees had recovered from COVID-19 as of today… That number has declined in recent weeks, suggesting the bureau removes cases from its total when people are transferred out of the prison.”

Yale University Law School, CJAC Wins Speedy Release of Medically Vulnerable Individuals from Federal Prison in Danbury (December 12, 2020)

Order, Whitted v Easter, Case No 3:20-cv-00569 (D. Conn, December 11, 2020)

WWLP-TV, Judge orders release of 17 virus-vulnerable federal inmates (December 12, 2020)

KMSP-TV, ACLU sues federal prison in Waseca, Minn. after 67% of inmates test positive for COVID-19 (December 10, 2020)

Burlington County Times, More NJ lawmakers renew call for end to inmate transfers at FCI Fort Dix (December 10, 2020)

Johnstown Tribune-Democrat, Feds: Loretto prison following guidelines (December 11, 2020)

Mahoning Matters, Columbiana County reports 244 new COVID-19 cases, 2 new deaths (December 11, 2020)

New York Times, Stop the Coronavirus Outbreak at Brooklyn’s Federal Jail (December 8, 2020)

– Thomas L. Root

‘You May Be Sick, But You’re Still a Bad Guy’ – Update for November 5, 2020

Leave a comment

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

A COUPLE OF NOTES ABOUT COMPASSIONATE RELEASE…

Two decisions last week delivered some handy reminders to people seeking “compassionate release” sentence reductions under 18 USC § 3582(c)(1)(A)(i) that (1) a defendant’s being sick or prone to get sick is not the only concern of the judge; and (2) there are procedural pitfalls for the unwary.

death200330By now, everyone knows that you have to show “extraordinary and compelling” reasons warranting a sentence reduction. These days, such reasons are usually (but not always) that you have medical conditions that puts you at risk for catching COVID (although a variety of reasons from medical to questions of fairness have supported compassionate release in the two years since defendants first got the right to bring the motions themselves in the First Step Act).

But “extraordinary and compelling” is just part of the showing you have to make. The statute also requires that the court consider the “sentencing factors” of 18 USC § 3553(a). And whether the factors favor grant of your motion is almost solely the judge’s call.

The factors are framed in such terms as consideration of “the nature and circumstances of the offense and the history and characteristics of the defendant” and “the need for the sentence to reflect the seriousness of the offense, to promote respect for the law, and to provide just punishment for the offense; to provide adequate deterrence to criminal conduct; to protect the public from further crimes of the defendant; and to provide the defendant with education, training, medical care, or other treatment.” But what it all comes down to whether the judge thinks the defendant has been locked up long enough.

Keith Ruffin filed a motion with his sentencing court for compassionate release, arguing that his heart problems, high blood pressure, high cholesterol, and blood clots, put him more at risk for COVID. These are all pretty good reasons, according to the Centers for Disease Control and Prevention. But his sentencing judge disagreed that his health concerns were “extraordinary and compelling reasons” for relief, and held that even if they were,  the § 3553(a) sentencing factors argued against a sentence reduction.

lockedup201105Last week, the 6th Circuit upheld denial of Keith’s compassionate release motion. It ignored Keith’s solid argument that the district court had erred in holding that because Keith could currently manage his health conditions, his risk factors were not extraordinary and compelling reasons for compassionate release. Instead, the court said, the district court is pretty much all there is in deciding that cutting Keith loose was inconsistent with the 3553(a) factors.

“These ubiquitous factors,” the Circuit said, “consider such things as the characteristics of the defendant, the nature of the offense, and various penological goals, such as the need to promote respect for law and to protect the public. This last requirement confirms an overarching point: The district court has substantial discretion. The statute says that the district court “may” reduce a sentence if it finds the first two requirements met; it does not say that the district court must do so. Even if those conditions are met, therefore, a district court may still deny relief if it finds that the “applicable” 3553(a) factors do not justify it. And in a reduction-of-sentence proceeding, as at sentencing, the district court is best situated to balance the § 3553(a) factors.”

A district court might abuse its discretion, the 6th said, if its denial was based on a purely legal mistake (such as a misreading the extraordinary-and-compelling-reasons requirement) or if it engaged in a substantively unreasonable balancing of the § 3553(a) factors. Here, the district court considered the amount of time served, his somewhat uneven prison record as evidence of the extent of rehabilitation, and the fact Keith had committed his crimes while suffering from the same health concerns he now relied on to justify compassionate release.

In another case, Art Payton’s compassionate release motion was denied by his sentencing court last July 24th. He filed a notice of appeal on August 10th, 17 days later. Last week, the 6th Circuit dismissed his appeal.

timewaits200325The deadline for an appeal in a civil case is at least 30 days after the final order is issued (and can be more in some cases). But a motion under 18 USC § 3582(c)(1)(A)(i) is a continuation of a criminal case, and thus is subject to the 14-day deadline set out in Fed.R.App.P. 4(b)(1).

Rule 4(b)(4) authorizes the district court to extend the time in which a party may appeal for up to 30 days from the end of the fourteen-day appeal period provided in F.R.App.P 4(b)(1)(A). However, the court must find “good cause” or “excusable neglect” for the failure to timely file a notice of appeal.

The Court sent the case back to the district court to determine whether Art’s excuse – that the prison has been “on an institution-wide lockdown and getting copies in this environment is problematic” – should allow him to file a belated appeal.

United States v. Ruffin, Case No. 20-5748, 2020 U.S. App. LEXIS 33689 (6th Cir Oct 26, 2020)

United States v. Payton, Case No 20-1811, 2020 U.S. App. LEXIS 33965 (6th Cir Oct 28, 2020)

– Thomas L. Root

ACLU Sues to Get the Real COVID Story from BOP – Update for October 26, 2020

Leave a comment

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

ACLU SUES BOP OVER COVID RECORDS

The American Civil Liberties Union sued the Federal Bureau of Prisons and Centers for Disease Control and Prevention last week in District of Columbia federal court, demanding information about the government’s response to the risk of COVID-19 in detention facilities it has been seeking since last April.

OPRFOIA180814The ACLU said it “seeks to uncover critical information about the federal government’s response — and lack thereof — to the coronavirus in detention facilities across the country. Based on the limited data available, it appears that the BOP has failed to prevent the spread of the coronavirus in its facilities.” It first sought BOP records relating to COVID-19 in April and sought DOJ and CDC records in July, according to the lawsuit. While the agencies acknowledged the requests, they have yet to provide the ACLU with the documents.

“Although the BOP, HHS, and other offices granted the ACLU’s request for expedited processing, that was a dead letter,” the complaint alleges, “Defendants have failed to produce any records. Meanwhile, the pandemic continues to threaten the people in federal prisons and the communities where they operate.”

That is hardly surprising. Anyone with experience seeking records under the Freedom of Information Act knows that, primarily because the Act exacts scant penalties from federal agencies that violate it. If the choice is between dedicating resources to complying with FOIA and finally turning documents over on the courthouse steps months later, guess which option the agencies will select?

Complaint, ACLU v BOP, Case No 1:20cv3031 (D.D.C., filed Oct 21, 2020)

Vice News, The Trump Administration Is Getting Sued Over COVID Exploding in Prisons (Oct 21)

Indiana Public Media, ACLU Sues Bureau of Prisons Over COVID-19 Record Keeping (Oct 22)

– Thomas L. Root