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Some BOP Tidbits From Last Week – Update for November 8, 2022

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

LAST WEEK IN THE BOP

sexualassault211014Deputy Attorney General Lisa Monaco told Department of Justice  officials last Wednesday that prosecutors must use “all available tools” to hold BOP employees who sexually abuse women in their custody accountable, including employing a new law that has a maximum sentence of 15 years.

“The Department’s obligation to ensure the safety and wellbeing of those in our custody is enduring,” Monaco wrote. Her memo, obtained by NPR, “follows a high-level review this year that uncovered hundreds of complaints about sexual misconduct by Bureau of Prisons employees over the past five years, but only 45 federal prosecutions during that same period.”

The working group identified weak administrative discipline against some prison workers — and flaws in how prosecutors assessed reports of abuse.

Meanwhile, Sen. Richard Durbin (D-IL), chairman of the Judiciary Committee, issued a statement that last week’s “DOJ report on pervasive sexual abuse in our nation’s federal prisons is evidence of the desperate need for reform. The new Director, Colette Peters, needs to show resolve and Congress needs to back her efforts to clean up this sorry mess.”

peters220929BOP Director Colette Peters continued her charm offensive last week, sitting for a lengthy interview with Government Executive magazine. Despite the DOJ Inspector General’s report the week before criticizing the BOP for reflexively disbelieving inmates and whitewashing staff misconduct, Peters said, “We are partnering with the inspector general. I’ve met with him multiple times now to ensure that we’re holding individuals accountable. I’ve met with the U.S. attorneys and asked the same thing: that they take these employee cases very seriously, both because those individuals need to be held accountable, but the person working next to that individual needs to know that their work is valued and that when people are making bad choices, that they’ll be held accountable, so that the employee remaining is safe and secure.”

Peters noted that the BOP will fill 40 additional in its Office of Internal Affairs to address sexual assault backlogs.

Peters also told Government Executive, “[T]here’s a huge perception out there that [First Step Act] implementation didn’t happen or didn’t happen when it was supposed to. But as I review the outcomes and the deliverables we’ve delivered, the programming is happening…While there might have been bumps along the way, the agency has been working really hard to ensure that [First Step Act] implementation happens both at headquarters and in the institutions.”

ombudsman221108I reported last month that Sens Jon Ossoff (D-GA) and Mike Braun (R-IN) had introduced legislation, the Federal Prison Oversight Act (S. 4988) that would establish an independent DOJ ombudsman to investigate the health, safety, welfare, and rights of BOP inmates and staff and create a hotline for relatives and representatives of inmates to lodge complaints. A companion bill, H.R.9009, was introduced in the House by Rep. Lucy McBath (D-GA).

A week ago, Sen. Ossoff told Capital Beat News Service that the bill’s prospects for passage during the Congressional lame-duck session after this week’s mid-term elections “are favorable because it has bipartisan support.”

NPR, Guards who sexually abuse inmates haven’t been punished harshly enough, DOJ memo says (November 3, 2022)

Office of Richard Durbin, Durbin Statement On New Report On Sexual Misconduct By Bureau Of Prisons Staff (November 4, 2022)

Government Executive, We’re Not ‘Shawshank Redemption’: New Federal Prisons Director Tackles the Bureau’s Reputation (November 2, 2022)

Capital Beat News Service, U.S. Sen. Jon Ossoff sees ‘signs of improvement’ at Atlanta federal penitentiary (October 26, 2022)

– Thomas L. Root

Has the BOP Just Had Its ‘George Floyd’ Moment? – Update for October 17, 2022

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

BOP MISTREATMENT OF DYING INMATE DYING OF CANCER SPARKS OUTRAGE

The murder of George Floyd by Minneapolis police officer Derek Chavin captured the nation’s attention and fury like no event in the recent history of policing and race. With an angry opinion from U.S. District Judge Roy Dalton (Middle District of Florida), the late Frederick Mervin Bardell’s tragic mistreatment may do the same for the Federal Bureau of Prisons.

Fred was housed at FCI Seagoville, finishing a 151-month sentence for possession of child pornography, when he developed an intestinal mass that turned into metastatic colon cancer.  As Judge Dalton put it, “Frederick Marvin Bardell was a convicted child pornographer. He was also a human being.”

In November 2020, Fred filed a motion for compassionate release, complaining that he suffered from “unspecified bleeding,” “metastatic liver lesions (suspected cancer),” and “malignancy in his colon.” His medical expert averred that Fred “ha[d] a high likelihood of having cancer of the colon with likely metastasis to the liver.”

medical told you I was sick221017The BOP admitted that Fred has “liver lesions highly suspicious for metastatic disease” but argued that “to date, no one has determined that [his] condition is terminal.” The Government also maintained that there was no indication that Fred could not receive adequate care in custody. Based on the Government’s assurance, the Court denied his November compassionate release motion.

You have to love the construction of the argument. It is not that the BOP is saying it CAN and WILL provide Fred with adequate medical care. Instead, it’s just that Fred can’t prove the BOP is unable to do so. But, as Judge Dalton wrote just two weeks ago, “As we now know, it was not true that Mr. Bardell could receive adequate care in custody, and, regrettably, his condition was indeed terminal.”

Fred filed a second compassionate release motion in February 2021, three months later. The Court granted this motion, which was supported by an affidavit from an oncologist that Fred was likely dying of metastatic colon cancer. The Court ordered Fred released as soon as the Probation Office and Fred’s attorney worked out a release plan appropriate for someone in Fred’s condition.

The BOP didn’t wait for any release plan. In fact, the BOP staff at Seagoville didn’t read the details in the release order at all. Instead, the BOP contacted Fred’s parents and demanded that they fork over $500 for a plane ticket for Fred. As soon as they did, Seagoville sent its inmate driver – who said he was told not to get out of the car – to Dallas-Fort Worth Airport, where Fred – who was “skin and bones, wheelchair dependent, and bladder and bowel incontinent” – was unceremoniously dumped on the curb without help or even a wheelchair.

With the aid of strangers, Fred was able to get loaded into a wheelchair, get on the plane, suffer through a change of planes in Atlanta, and finally arrive in Jacksonville. Fred, “who had a tumor protruding from his stomach and was visibly weak and bleeding, unsurprisingly soiled himself during this not so bon voyage,” the judge wrote.

bardell221017Fred’s lawyer and parents met him at the airport. Fred’s father had to take off his shirt and place it under his son to keep the blood and feces off the car seat. They took Fred directly to a hospital, where he died nine days later. His specialist said that if he had gotten prompt treatment when was first found, he would have had a 71% chance of recovery.

Two weeks ago, Judge Roy Dalton held the BOP in civil contempt for ignoring his release order. The judge was clearly frustrated that he could not do more. In what Reason called “a scathing opinion,” the Judge expressed dismay that “while the sanctions imposed are remedial in nature and restricted by law, the Court admonishes the BOP and [FCI Seagoville] Warden Zook for their blatant violation of a Court Order and sheer disregard for human dignity.” Judge Dalton wrote, “The BOP as an institution and Warden Zook as an individual should be deeply ashamed of the circumstances surrounding the last stages of Mr. Bardell’s incarceration and indeed his life. No individual who is incarcerated by order of the Court should be stripped of his right to simple human dignity as a consequence.”

investigate170724The Court recommended that the Attorney General investigate “the circumstances of Mr. Bardell’s confinement and treatment, the failure of the BOP to respond to his medical needs, and the BOP’s misrepresentations in connection with the compassionate release briefing regarding the seriousness of his condition,” the opinion states. “On a parallel track, the Court retains jurisdiction to continue investigating the circumstances surrounding the truthfulness of the assertions in the Government’s filings as well as Mr. Bardell’s incarceration and release.”

The Judge’s October 4 opinion appears to have gained national attention through an article in Reason, which also published accounts several years ago about three deaths from alleged medical neglect at FCI Aliceville.  At the time, Reason noted

The Bureau of Prisons listed the cause of death in all three cases as “natural causes,” according to public records obtained by Reason. That classification, while technically correct, erases the culpability of the agency. It’s like claiming a man accidentally drowned after you refused to throw him a life preserver.

But the agency doesn’t want to talk about what happened. When asked for more information, the BOP public affairs office said the agency “does not disclose the details of an inmate’s death.” The FCI Aliceville public information officer did not return multiple requests for comment. Reason has been waiting for more than a year for additional Freedom of Information Act records concerning these incidents.

sorry190124But in Fred’s case, the BOP’s response was different. BOP Director Colette Peters released a statement offering her condolences to the Bardell family but declining to comment on the specifics of the case because it was the subject of continuing litigation. She promised to cooperate with any investigations into the matter. “My heart goes out to Mr. Bardell’s family, to whom I send my deepest condolences,” Ms. Peters (who was not Director when Mr. Bardell’s mistreatment occurred) said. “Humane treatment of the men and women in Bureau of Prisons custody is a paramount priority. In instances where we have failed at upholding our mission, we are taking steps to find out what happened, how it happened, and how we can prevent it from happening in the future.”

Meanwhile, official attention is being paid to the matter. Senate Judiciary Chairman Richard J. Durbin (D-IL) wrote on Twitter that “the details unveiled in this case are appalling, and may not be isolated.” He called on the Justice Department’s inspector general “to investigate B.O.P.’s treatment of medically vulnerable individuals both while incarcerated and upon their release.”

On Friday, the Justice Department inspector general’s office announced it was opening an investigation into the case.

United States v. Bardell, Case No 6:11-cr-401, 2022 U.S.Dist. LEXIS 181785 (M.D. Fla., October 4, 2022)

Reason, Judge Holds Federal Bureau of Prisons in Contempt for Allowing Man To Waste Away From Untreated Cancer (October 10, 2022)

Washington Post, Judge blasts Bureau of Prisons’ treatment of dying prisoner (October 14, 2022)

New York Times, Judge Holds Prison Officials in Contempt for Treatment of Terminally Ill Inmate (October 13, 2022)

– Thomas L. Root

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

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

WHO CARES ABOUT THE END OF THE PANDEMIC?

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

– Thomas L. Root

BOP Director to Be Grilled By Senate Judiciary Committee Today – Update for September 29, 2022

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

DURBIN TO GRILL BOP DIRECTOR AT THURSDAY JUDICIARY HEARING

peters220929When Colette Peters was sworn in last month as BOP director, her honeymoon with Sen Richard Durbin (D-IL), chairman of the Judiciary Committee, lasted all of three days.

Durbin’s dislike of prior Director Michael Carvajal was well known, and publicly, the Senator was elated at Peters’ appointment. But when Durbin learned the BOP had given Carvajal a 30-day consulting contract to assist the new director with the transition, he was much less enthused.

At the time, Durbin threatened to hold another oversight hearing on the BOP. He is about to make good on that threat.

The Judiciary Committee will conduct a BOP oversight hearing today. Peters is the primary witness, but other witnesses include Shane Fausey, President of the Council of Prison Locals national union; John Wetzel, a prison consultant and former head of the Pennsylvania Dept. of Corrections; and Cecilia Cardenas of Davenport, Iowa.

It is not clear who Ms. Cardenas is, but a person of that name and from that area was released by the BOP last January.

understaffed220929

Fausey is probably on the witness list because of his outspoken criticism of BOP staffing levels. Fausey told a reporter last week that much of the BOP staffing decline is due to declining morale as general environmental conditions are declining. He said BOP staff is “exhausted” as mandatory overtime has “skyrocketed” at high-security institutions across the country.

Last week, BOP employees at FCI Raybrook in upstate New York posted a sign along a highway there saying the federal prison is “dangerously understaffed” and asks the community if it feels safe.

I expect that a major topic of discussion will be the Federal Prison Oversight Act, introduced yesterday by Sens Jon Ossoff (D-GA), Mike Braun (R-IN), and  Durbin. The Federal Prison Oversight Act, according to a Durbin press release, will require the Dept of Justice’s Inspector General to

conduct comprehensive, risk-based inspections of the [BOP’s] 122 facilities to identify problems that affect incarcerated people and staff and to provide recommendations to address them.  It will require the IG to assign each facility a risk score, with higher-risk facilities required to be inspected more often.  Under the bill, the IG must also report its findings and recommendations to Congress and the public, and the BOP must respond to all inspection reports within 60 days with a corrective action plan.

The bill will also establish an Ombudsman within DOJ to investigate issues that adversely affect the health, safety, welfare, or rights of incarcerated people or staff, and who would report dangerous findings directly to the Attorney General and Congress.  The Ombudsman would also be tasked with creating a secure hotline and online form to be made available for family members, friends, and representatives of incarcerated people to submit complaints and inquiries regarding issues within BOP. 

forcedsex161202No doubt Peters will be asked pointed questions about sexual assault of female prisoners. Last week, she issued a statement saying she was “firm in my commitment to work with the BOP team, Department of Justice (DOJ) leadership, the Office of Inspector General (OIG), Congress, and others as I begin to assess and address issues and concerns pertaining to the BOP and the Federal Correctional Institution (FCI) Dublin.”

The former warden and four other FCI Dublin employees face criminal charges for sexually assaulting female inmates.

Peters may as well be asked about the sexual assault scandal at FMC Carswell, the only medical center for women in the BOP system. The Ft Worth Star-Telegram last week reported that a former federal Bureau of Prisons staff member who pleaded guilty to raping two women at a prison in Fort Worth was sentenced to 18 months in prison — half the time one of his victims is serving for drug possession.

Luis Curiel pleaded guilty to two counts of sexual abuse of a ward while he was a lieutenant at Carswell. He was sentenced to concurrent 18 months for each charge. According to court documents, Curiel admitted to meeting three women at separate times near a staff elevator and forcing them into sexual acts.

If the Committee runs short of topics for Director Peters, it may inquire about an Oklahoma City TV report last week that a widow is still seeking answers about her husband’s death at FTC Oklahoma City.

missingcorpse220929Nearly two weeks after Jonathan Patterson Days died suddenly at the FTC, his wife told reporters says she still doesn’t know what happened to him and the facility hasn’t returned his body.

Abbie Alvarado-Patterson said she asked the chaplain, “when do I get his body back? He said, ‘you want his body back?’” She said the BOP chaplain couldn’t give her any additional information about what happened, including a timeline for returning the body

Associated Press, Senate to hold hearing on crisis-plagued federal prisons (August 5, 2022)

Senate Judiciary Committee, Hearing Notice (September 29, 2022)

Associated Press, Senators push new oversight to combat federal prison crises (September 28, 2022)

Press Release, Durbin, Ossoff, Braun Introduce Bipartisan Bill To Overhaul Federal Prison Oversight (September 28, 2022)

News Nation, Experts warn prison staff shortage put lives at risk (September 23, 2022)

KTVU-TV, Prison director vows to ‘change the culture’ at FCI Dublin (September 23, 2022)

Ft Worth Star-Telegram, Fort Worth prison officer gets lighter sentence for assault than victim’s drug sentence (September 20, 2022)

KFOR-TV, ‘This man was loved’: Wife demands answers after husband dies in federal custody (September 21, 2022)

– Thomas L. Root

Peters Off to a Rocky Start at BOP – Update for August 11, 2022

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IT ONLY TOOK TWO DAYS FOR THE NEW DIRECTOR TO STEP IN IT…

stepinit220811Reason reported last week, “We last saw outgoing BOP Director Michael Carvajal running down a stairwell on July 26. He was trying to get away from some Associated Press reporters who revealed systemic dysfunction and corruption within the federal prison system—an apt ending for his tenure.”

But it seems that rather than being gone but not forgotten, Mr. Carvajal may be forgotten but not gone.

The AP reported last week that the BOP “is keeping its former director on the payroll as an adviser to his successor, rewarding him with an influential new role after concerns about his leadership — including from staff, inmates, Congress and the Biden administration — hastened his exit from the top job.”

Carvajal will stay on through the end of the month as a senior adviser to new director Peters, BOP spokeswoman Kristie Breshears told AP. “Critics say that retaining Carvajal, even for a few weeks, could slow that progress,” Corrections1 said. “Some people involved in the federal prison system say Carvajal lacks credibility and that the decision to let him stay on sends mixed signals about the direction of the agency at a pivotal time.”

Unbelievable220811“That is unbelievable. Why would we keep an individual that has left this agency in ruins, and who refuses to take ownership of failures of his administration, from staffing to COVID?” said Jose Rojas, a leader in the federal correctional officers’ union. “What a sad state of affairs.”

The announcement did not please Sen. Richard Durbin (D-IL). The chairman of the Senate Judiciary Committee said last Friday he plans to hold yet another oversight hearing on the BOP after The Associated Press reported that the agency is keeping Carvajal on the payroll as an adviser to Peters.

Durbin, who demanded Carvajal be fired last November amid myriad failings, told the AP in a statement he was dismayed by continuing misconduct within the agency and by its unwillingness to completely cut ties with the former director.

Reason, Biden’s New Bureau of Prisons Director Won’t be Able To Run Away From the Agency’s Corruption (August 1, 2022)

Corrections1, US keeping ex-prison chief as top adviser after rocky tenure (August 5, 2022)

Associated Press, Senate to hold hearing on crisis-plagued federal prisons (August 5, 2022)

– Thomas L. Root

Musings on a Slow Month – Update for July 26, 2022

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

THE GOOD, THE BAD, AND THE WEIRD

summertime220725In the only good news to come from Washington so far this sleepy July, Senate Democrats have introduced a bill to decriminalize marijuana at the federal level this week, although the legislation faces long odds in the evenly divided chamber.

Majority Leader Charles Schumer (D-NY) worked with Sen Cory Booker (D-NJ) and Ron Wyden (D-OR) on the measure. The senators circulated a draft of the bill last year and made tweaks after feedback from Senate committees.

The Cannabis Administration and Opportunity Act (S.4591) would remove marijuana from the list of drugs covered by the Controlled Substances Act. States, however, can still maintain and create prohibitions on producing and distributing marijuana.

marijuana160818The CAOA is the Senate’s answer to the MORE Act (H.R. 3617), passed in the House last spring on a 220-204 vote. Like the MORE Act, the CAOA will require all federal non-violent marijuana-related convictions and arrests be expunged within a year. Some lawmakers on both sides of the aisle have criticized Schumer for trying to push through a broad cannabis reform bill at the expense of a marijuana banking bill that has greater bipartisan support.

The bad is that the EQUAL Act (S.79), which passed the House (361-66) last September, remains stalled in the Senate. The Act, which would equalize sentences for crack and powder cocaine (and offer retroactivity to anyone serving a crack offense now) has well over 60 votes in the Senate. The Senate Majority Leader – the guy who schedules votes on bills – is a cosponsor. So what’s the holdup?

In a long article on a crack cocaine defendant who finally got compassionate release, the Mississippi Free Press last week reported, “FAMM President Ring told the Mississippi Free Press more about what he sees as the senators’ political calculations. ‘The problem is that lawmakers are scared that if this bill comes up, Republicans will be allowed to offer amendments to it because that’s usually how the process works,’ he said.

Ring said that votes on amendments unrelated to the bill can be “weaponized by political opponents… As a result, the political calculation has been made to shelve the bill in the Senate.”

crackpowder160606In addition, Dream Corps JUSTICE Policy Director Kandia Milton, in June 23, 2022, letter, indicated that the group is concerned about a competing Senate bill sponsored by Sen Charles Grassley (R-IA) — the SMART Cocaine Sentencing Act, S.4116 – that “maintains a disparity between these two forms of the same drug (2.5-1), lower the mandatory minimum threshold to 400 grams from 500 grams and, worst of all, mandates that the U.S. Attorney must approve all petitions for retroactivity.” Milton wrote. “Our sense of urgency is driven by the reality that if we do not pass [EQUAL] by the August recess, we won’t get another clean shot until after the midterm elections, an unpredictable two-month window at the end of the year,” he added. “We are very close to eliminating the disparity between crack cocaine and powder cocaine, and we recognize there is more work to be done.”

The weird: Two weeks ago, the Senate Judiciary Committee whiffed for a second time on approving the nomination of the seven candidates for the Sentencing Commission. At the beginning of last Thursday’s work session, Durbin said, “We have decided on a bipartisan basis to hold over for a second time the Sentencing Commission nominees while members are in… we’re going to try to find a path for all seven nominees to move together, which I think would be a positive thing and maybe even historic around here.”

The terse statement suggested some substantial pushback on one or more nominations. Laura Mate, who signed a 2014 letter to Congress supporting more reasonable mandatory minimums for sex offenders, and former federal judge John Gleeson, whose criticism of the Guidelines while on the bench was legendary, were both pilloried by several Republicans during their June nomination hearing.

Nevertheless, last week the Committee finally got the job done. It advanced the slate of seven nominees to the floor of the full Senate for its approval, bringing the Commission one step closer to being able to amend the Sentencing Guidelines.

noquorum191016The USSC has been unable to implement the First Step Act or, for that matter, do anything else after losing its quorum just as the bill was enacted in December 2018.

The Senate Judiciary Committee voted to send to the full Senate four Democrat and three Republican candidates nominated by President Joe Biden to revitalize the Commission.

Committee chairman Durbin told the Committee that while he had reservations about some nominees, it was important to move them forward as a group to “enable the commission to get back to doing its work.” He said, “[T]he Sentencing Commission has not had a quorum for three years. With no quorum, the Commission—created in 1984 and tasked by Congress to promote transparency and consistency in sentencing—has been unable to update the sentencing guidelines to provide guidance to judges. Today, we make an important step to rectify the situation… [and] enable the Commission to get back to its work.”

Cannabis Administration and Opportunity Act (S.4591)

Seeking Alpha, Senate Democrats-backed marijuana legalization bill coming next week (July 14, 2022)

Bloomberg, Pot Gets Senate’s Attention in Long-Shot Decriminalization Bill (July 14, 2022)

Politico, Schumer’s legal weed bill is finally here (July 21, 2022)

KYFR, North Dakota lawmakers, advocates push for equal sentencing in federal cocaine and crack crimes (July 12, 2022)

Senate Judiciary Hearing (July 14, 2022)

Mississippi Free Press, ‘Model Inmate’: Father Finally Has Crack Sentence Reduced as U.S. Senate Shelves Reform Bill (July 22, 2022)

Independentcloud.com, Cannabis Bill Senate: US Democrats Demand Senate Pass Its Own Marijuana Banking Bill (July 21, 2022)

Reuters, US Senate committee advances nominees to restock sentencing panel (July 21, 2022)

Sen Richard Durbin, Judiciary Committee Advances Ten Nominees, Including Two Judicial Nominees, Seven Sentencing Commission Nominees, And An Assistant Attorney General (July 21, 2022)

– Thomas L. Root

The King is Dead, Long Live the Queen – Update for July 18, 2022

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

NEW ‘REFORM’ SHERIFF COMES TO BOP

Colette S. Peters, the longtime director of the Oregon Department of Corrections, has been tapped to lead what The New York Times last week called “the chronically mismanaged and understaffed federal Bureau of Prisons.”

Dumpster220718The appointment comes after a 5-month search to replace current BOP Director Michael Carvajal. Carvajal announced his retirement in January under pressure from Senate Democrats – especially Judiciary Committee Chairman Richard Durbin (D-IL) – who questioned his management.

The Times said Peters “was considered the favored candidate for a job seen as one of the Justice Department’s most demanding and thankless assignments.” Kevin Ring, president of FAMM, was blunter:  “Colette Peters is walking into a dumpster fire. From sexual violence and medical neglect to understaffing and years-long lockdowns, the BOP’s leadership has allowed a humanitarian crisis to develop on its watch. Families with incarcerated loved ones have been begging for change.”

The Associated Press reported that “Peters, who championed steeply reducing [Oregon’s] inmate population in the last decade, will inherit a federal agency plagued by myriad scandals. Her hiring comes about seven months after Director Michael Carvajal submitted his resignation amid mounting pressure from Congress after investigations by The Associated Press exposed widespread corruption and misconduct in the agency.”

Those issues include health and safety problems, physical and sexual abuse, corruption and turnover in the top management ranks. Staffing issues, exacerbated by the pandemic, have resulted in a huge shortage of prison guards and health personnel, according to an AP investigation last year, which uncovered a wide array of other shortcomings.

bureaucracy180122When she takes office on Aug 2, Peters will become only the second director in BOP history with no prior experience in the federal prison system. Deputy Attorney General Lisa Monaco, who led the search to replace Carvajal, said DOJ had been looking for someone focused on reforming an agency that has had cultural issues for decades.

Durbin had been especially critical of Carvajal, who started his BOP career as a correctional officer 30 years ago, accusing him of failing to properly implement the First Step Act. Last winter, he called repeatedly for Carvajal’s firing, describing the BOP as rife with abuse and corruption.

The accuracy of that criticism was underscored this week by a Forbes report that 42 months after First Step became law, the BOP is only now beginning staff training on how to apply earned-time credits for inmates, with training set to start next month. Forbes said, “While the training on FSA is a great idea, it also serves as verification that the BOP is way behind on implementing the most important aspect of the law, which is to allow prisoners to earn time off of their sentences. After training, it will take months to coordinate local training at the institution level. Until then, expect the chaos to continue and questions to go unanswered.”

Shane Fausey, national president of the Council of Prison Locals, which represents BOP employees, welcomed the selection of Peters. “We believe that the lessons [Peters] learned while leading the Oregon Department of Corrections can be used to effectively improve the BOP,” he told Government Executive. “Additionally, it is extremely important that officer and employee safety are prioritized in all decisions.”

Rep Fred Keller (R-PA), chair of the House BOP Reform Caucus, said, “I look forward to maintaining an active and productive relationship with Director Peters in her new capacity on BOP priorities such as improving the agency’s operations, increasing correctional officer staffing levels, and ensuring the safety of staff and inmates.”

Peters has faced criticism during her stint as ODOC chief. She was accused in a lawsuit of placing underqualified friends in high-ranking positions within the ODOC and creating openings for them by firing other employees or creating a hostile environment causing other employees to quit.

Bobbin Singh, the executive director of the Oregon Justice Resource Center, last week expressed concern about Peters’s appointment given his experience with her. “This appointment is an insult to all those incarcerated in Oregon who are fighting for their civil rights and dignity,” Singh told the online publication Law Dork last Tuesday.

Less than a month ago, his organization sent a report to Oregon lawmakers detailing ongoing problems at ODOC. In the letter to lawmakers accompanying the report, Singh wrote, “Despite a cascade of evidence revealing serious issues within the department, ODOC continues to put forward a misleading narrative that either ignores the issues entirely, profoundly sanitizes the facts, or wrongly shifts blame and responsibility away from itself.”

goodbad220718Law Dork reported, “Another person familiar with Peters’s work helped explain how Singh could have such criticisms and DOJ could nonetheless want Peters for the job: ‘She both runs a bad system and is one of the handful of best DOC heads in the country. She has made some concrete improvements to the system. But the system is still really bad. It says so much about American prisons that ODOC can both be very bad — and be one of the better ones in the country.’”

NY Times, Justice Department Taps Oregon Official to Run Troubled Bureau of Prisons (July 11, 2022)

Associated Press, Justice Dept taps reforming outsider to run federal prisons (July 12, 2022)

Forbes, 42 Months After The First Step Act Was Signed Into Law, The Bureau Of Prisons Starts Training Staff (July 15, 2022)

Govt Executive, A New Federal Prisons Director Has Been Named, and Union Officials and Lawmakers Are Optimistic She Will Bring Positive Reforms (July 12, 2022)

Law Dork, New Prisons Head Comes From Oregon, With Baggage (Jul y 13, 2022)

FAMM, FAMM releases statement on new Bureau of Prisons Director (Jul 12)

– Thomas L. Root

Batting Cleanup for LISA… – Update for June 17, 2022

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wahoo220617We post news and comment on federal criminal justice issues, focused primarily on trial and post-conviction matters, legislative initiatives, and sentencing issues.

Today, we’re cleaning up the week with some odds and ends left over from the week before…

Judiciary Committee Grills Sentencing Committee Nominees: President Biden’s seven nominees to the U.S. Sentencing Commission promised at a Senate hearing last week to prioritize implementing the First Step Act by amending the Guidelines, something the Commission had been unable to do since losing its quorum just as the 2018 law passed.

U.S. District Judge Carlton Reeves (S.D. Miss), nominated to be chairman of the USSC, told the Judiciary Committee that the Commission would also address what he called “troubling” divisions that emerged among courts on sentencing issues during the years it lacked a quorum.

Four Democrat and three Republican picks have been nominated to join the seven-member commission.

Senior U.S. District Judge Charles Breyer (N.D. Cal.), the lone remaining member of USSC, has complained that the Commission’s inability to update its compassionate release policy (USSC § 1B1.13) in light of First Step has resulted in inconsistent decisions across the nation on compassionate release amid the COVID-19 pandemic.

“Today, we take an important step to remedy that problem,” said Judiciary Committee chairman Sen Richard Durbin (D-IL).

Sen Marsha Blackburn (R-TN) jumped on one Democratic nominee, former U.S. District Judge John Gleeson. Gleeson, one of the most thoughtful and creative sentencing judges during his time on the E.D.N.Y. bench, has been a critic of mandatory minimum drug sentences.

“How can you possibly say that more lenient sentencing and reduced penalties for convicted criminals is the answer to our crime problems?” Blackburn complained. Gleeson, now a partner at a Wall Street law firm, responded that as a judge he tried only to show the impact mandatory sentences have on “the individualized sentencing that our system contemplates.”

pissfire220617Meanwhile, former federal defender Laura Mate, a director of the Federal Defenders’ Sentencing Resource Counsel Project, refused demands by Sen Josh Hawley (R-MO) to renounce a detailed 61-page letter to the Sentencing Commission she had co-signed in 2013. The letter had criticized mandatory minimums, especially for some child pornography offenses, with a detailed, well-reasoned argument.

Mate was pilloried by at least one YouTuber for politely dodging Hawley’s question, but given what I know of the good Senator from the Show-Me State, I would resist agreeing with him that the sun rises in the east, because he would end our exchange accusing me of causing dawn to arrive too early.

Republican USSC nominees include Claire McCusker Murray, a Justice Department official during the Trump era; Candice Wong, a federal prosecutor in Washington, D.C., and U.S. District Judge Claria Horn Boom of Kentucky.

The hearing suggests that the Senate will act soon on restoring a functional Sentencing Commission. However, as Ohio State University law professor Doug Berman observed in his Sentencing Law and Policy blog, “it is still unclear exactly when there will be a committee vote and then a full Senate vote on these nominees. I am hopeful these votes might take place this summer, but I should know better than to make any predictions about the pace of work by Congress.”

Senate Judiciary Committee, Hearing (June 8, 2022)

Reuters, Biden’s sentencing panel noms vow to implement criminal justice reform law (June 8, 2022)

Sentencing Law and Policy, Senate conducts hearing for nominees for US Sentencing Commission (June 8, 2022)

Federal Defenders, Letter to Sentencing Commission (July 15, 2013)

rockingchair220617Last Week Makes Mike Long for Retirement:  BOP Director Carvajal is probably giddy at the prospect that his replacement is finally waiting in the wings. 

Besides the USP Thomson investigation being announced last week, the BOP suffered some embarrassing press last week:

•  A Miami TV station reported on a CO’s claim that drones were being used to smuggle contraband into FDC Miami;

•  A Colorado paper reported that the BOP was paying $300,000 in damages to an ADX Florence inmate with Type 1 diabetes who alleged in a lawsuit that he had been denied adequate amounts of insulin;

•  A San Francisco area TV station reported that a former FCI Dublin inmate – who early on told BOP authorities about what has turned into a major sex abuse scandal featuring the arrest of a former warden and four other staffers – says she was punished in retaliation for calling out the staff abuse. “I will never tell another inmate that they should go to report anything to anyone higher up,” the former prisoner told KTVU. “Because all that’s going to happen is it’s going to make their life worse.”; and

•  A former correctional officer at the Federal Medical Center in Lexington, Kentucky, was sentenced to more than 11 years after pleading guilty to sexual abuse of inmates.

Finally, in February, Carvajal told a Congressional committee that the “common criticism” that the BOP is understaffed was a “narrative [that] is routinely misrepresented without reference to the factual data.” Two weeks ago, he told BOP staff in an agency-wide memo that “staffing levels are currently trending downward nationwide.”

Last week, Government Executive reported that the declines have happened in the last four months and that the employees who have quit cite “lack of training and lack of connection to the institution as reasons for their leaving the bureau within the first few years of service.”

Mike must be thinking that the old rocking chair is looking pretty good right now.

WQAD-TV, Justice Department Inspector General launches investigation into USP Thomson (June 9, 2022)

WTVJ, Inmates Attempted to Smuggle Contraband Using Drones, Correctional Officer Says (June 8, 2022)

Colorado Sun, Bureau of Prisons to pay $300,000 to settle lawsuit after diabetic prisoner was allegedly deprived of insulin at Supermax facility (June 7, 2022)

KTVU, Woman who reported Dublin prison sexual abuse claims she was target of retaliation (June 10, 2022)

Government Executive, Federal Prisons Are Losing Staff. The Bureau’s Director Would Like to Fix That By October (June 6, 2022)

– Thomas L. Root

Dept of Justice Takes Hard Look at USP Thomson – Update for June 15, 2022

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

INSPECTOR GENERAL TO PROBE USP THOMSON

Last Thursday, the Dept. of Justice Inspector General launched an investigation into USP Thomson, based on a demand letter from Sens Richard Durbin and Tammy Duckworth, and Rep Cheri Bustos, all of whom are Illinois Democrats.

The demand letter had noted news accounts about Thomson that alleged Bureau of Prisons staff stoked tensions between cellmates to cause inmate-on-inmate attacks, encouraged assaults against sex offenders and informants, employed abusive shackling of inmates, and the highest use of pepper spray in the agency.

The letter said, “If these reports prove accurate, they describe conduct that would almost certainly contravene numerous BOP policies, as well as infringing the civil rights of individuals in BOP custody and possibly violating federal criminal statutes.”

thomson220615Thomson’s AFGE Local 4070 President Jon Zumkehr said in a released statement, “We fully support the investigation into the allegations into USP Thomson and we have also invited Sen. Durbin and Sen. Duckworth to visit USP Thomson.” Two years ago, the union complained that a staff shortage at Thomson was resulting in unsafe working conditions as the BOP used augmentation – assigning non-custody workers like nurses, psychologists and cooks to fill in as correctional officers – to address the problem.

In a speech on the Senate floor last Thursday, Durbin promised a Judiciary Committee hearing in the next few weeks on BOP oversight, including the continued overuse of solitary confinement and restricted housing. “We need answers from the Biden Administration on the failure to reduce the use of restricted housing,” Durbin said, “and we will discuss what BOP must do to address the staffing crisis that has contributed to this disastrous situation.”

Durbin also renewed his call for the immediate replacement of BOP Director Michael Carvajal, who announced his retirement months ago but is staying on until a replacement is named. Former Ohio Dept of Rehabilitation and Corrections chief Gary Mohr was rumored several weeks ago to be in line for the top BOP spot, but he denied it at the time. Nothing more has been said since then.

WQAD-TV, Justice Department Inspector General launches investigation into USP Thomson (June 9, 2022)

Press Release, Durbin Slams BOP Mismanagement, Allegations Of Abuse At USP Thomson (June 9, 2022)

– Thomas L. Root