englewood | Legal Information Services Associates LLC

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

COVID KEEPS ON GIVING

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

– Thomas L. Root

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.

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.

The 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.

The 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.”

And 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.”