We post news and comment on federal criminal justice issues, focused primarily on trial and post-conviction matters, legislative initiatives, and sentencing issues.
A SHARP POST-MORTEM OF BOP’S COVID RESPONSE
COVID is largely dead and gone, having been demoted from pandemic to endemic, allowing for a sober review of the BOP’s response. Last week, Stat – a Boston Globe health science publication – ran a statistics-based study of how BOP managed the pandemic. The review wasn’t pretty.
The study found that
• BOP facilities with high-risk patients didn’t prioritize them –
The study noted that FMC Devens – a medical center – did not vaccinate a single inmate for Covid-19 until Feb 11, 2021 — “almost two months after its counterparts across the federal Bureau of Prisons got started.” Other facilities, including FCI Sandstone and FCI La Tuna, a federal prison in Texas with one of the highest cumulative Covid-19 case rates, didn’t begin vaccinating until February 2021, either. Other facilities appeared to receive shots shortly after the FDA authorized them but only vaccinated a fraction of their residents.
• Federal prisons weren’t testing residents to prevent outbreaks –
By 2021, tests were widespread and cheap. Despite this, BOP prisons weren’t “even coming close to the CDC’s March 2021 recommendations that prisons should consider, at minimum, testing a random sampling of 25% of their incarcerated population each week.”
• The BOP’s own accounting of its early Covid response is incomplete –
The BOP lacks data showing how many tests it ran earlier in the pandemic. Records show, for example, that one medical center, MCFP Springfield, did not test any inmates until June 2020. A BOP spokesperson told STAT the BOP “administered COVID-19 tests to the inmate population as early as March 2020” but had no idea how many tests were administered or when.
• A slow booster rollout –
People housed in prisons were among the first eligible for COVID boosters because of their high COVID risk. While several BOP prisons did well mounting quick booster campaigns — FCI Bastrop, a 900-person prison, administered nearly 550 shots in just two months — “booster rates at several prisons were shockingly low, months after additional shots were authorized.”
Commentators have complained for several years that the BOP’s COVID stats were deeply flawed, especially because of the agency’s practice of deleting from the total number of inmates who caught COVID people who were subsequently released or transferred to another facility. To this day, no one outside the BOP has any idea of the extent of the pandemic from April 1, 2020, to May 11, 2023. As of the last day COVID stats were reported, the BOP said it had 43,681 inmates who had recovered from COVID. At its peak, the BOP reported more than 55,000 cases.
The study represents a stark illustration of the poor quality of BOP health services treatment of inmates and sketchy reliability of its data.
We post news and comment on federal criminal justice issues, focused primarily on trial and post-conviction matters, legislative initiatives, and sentencing issues.
THE WEEK IN COVID-19 LITIGATION
As of last night, June 14th, the number of Federal Bureau of Prisons inmates with COVID-19 had dropped from 2,109 a week ago to 1,341. The number of BOP facilities with COVID-19 on premises rose from 62 to 65, and then fell back to 62 as of last night. Deaths continued to climb, however, from 81 a week ago to 87 last night.
The numbers aren’t bad for the BOP. Inmate sickness has been fluctuating between 1,300 and 2,100 for a few weeks, and the number of prisons affected has leveled. But the BOP’s big advances last week were in the courtroom, not the medical suite.
Besides the 6th Circuit’s stay in FCI Elkton litigation, last Tuesday, Judge Rachel P. Kovner of the U.S. District Court for the Eastern District of New York denied prisoners a preliminary injunction because of inept medical care they claim amounts to cruel and unusual punishment, reasoning that despite deficiencies in MDC Brooklyn’s COVID-19 response, officials likely did not act with “deliberate indifference” to the health threat.
“Petitioners have not shown a clear likelihood that MDC officials have acted with deliberate indifference to substantial risks in responding to COVID-19,” Judge Kovner ruled. “Rather than being indifferent to the virus, MDC officials have recognized COVID-19 as a serious threat and responded aggressively.”
Nevertheless, the court cited significant problems with the BOP’s response to the pandemic. In particular, the judge noted the prison was way too slow responding to sick-calls requests and generally failed to isolate symptomatic inmates. “The MDC appears not to be isolating individuals who report COVID-19 symptoms,” in “tension with the CDC’s guidance” that they should be kept away from other inmates, Judge Kovner wrote. “Under standards of care that both parties have accepted, MDC officials’ apparent failure to fully implement the CDC guidance in these areas constitutes a deficiency in the MDC’s response to COVID-19.”
Judge Kovner also held the BOP had destroyed evidence by shredding the paper sick call requests used as the pandemic worsened. She sanctioned the BOP by drawing the inference that “the destroyed records would have contained additional reports of COVID-19 symptoms.” Still, the judge accepted the prison’s claims that it was doing the best it could under the circumstances, ruling that the evidence before the court did not clearly show that the inmates were at risk of serious harm, considering the MDC’s virus response, or that the prison did not care enough to shield them from that risk.
Meanwhile, last Thursday, a Massachusetts district court dealt a blow to the inmate habeas corpus/8th Amendment action against FMC Devens. The court held that the action – while calling itself a habeas corpus petition – was really a suit about prison conditions subject to the Prison Litigation Reform Act. The plaintiffs were given until the end of this week to show compliance with the PLRA, which mandates exhaustion of BOP administrative remedies as a jurisdictional condition. This holding conflicts with the 6th Circuit’s Wilson holding of three days before.
The North Carolina habeas corpus case against FCC Butner likewise suffered a setback on Thursday, when the Eastern District of North Carolina federal court denied a preliminary injunction. Like the 6th Circuit in the Elkton case, the district court ruled that while the inmate plaintiffs met the objective prong of the deliberate indifference showing, by showing that COVID-19 “poses significant health risks to both the world and community at large” and that the “disease’s uncontrolled spread within FCC Butner therefore presents a substantial risk of serious or substantial physical injury resulting from the challenged conditions,” they had not shown that the BOP was ignoring the spread of the illness.”
Chunn v. Edge, Case No. 20-cv-1590, 2020 U.S. Dist. LEXIS 100930 (E.D.N.Y., June 9, 2020)
Grinis v. Spaulding, Case No. 1:20-cv-10738-GAO, 2020 U.S. Dist. LEXIS 103251 (D.Mass., June 11, 2020)
Hallinan v. Scarantino, Case No. 5:20hc2088, 2020 U.S. Dist. LEXIS 103409 (E.D.N.C., June 11, 2020)
We post news and comment on federal criminal justice issues, focused primarily on trial and post-conviction matters, legislative initiatives, and sentencing issues.
COVID-19 ROUNDUP
Talk about illness… Everyone’s sick to death about COVID-19 talk. But wishing it gone is a little bit different than having it gone. That’s somewhat the problem that the Federal Bureau of Prisons has with the coronavirus in general, and that BOP Director Michael Carvajal has with it in particular.
The BOP’s active coronavirus count jumped 23% this past week, from 1,710 sick inmates on June 1 to 2,109 yesterday. Staff infection ticked up from 171 to 185, and the number of BOP facilities reporting the virus jumped 7%, from 57 to 62. Cumulative inmate COVID-19 deaths increased last week from 70 to 81.
The numbers keep ticking up, and – what’s worse – at the same pace. Nevertheless, when the Senate Judiciary Committee held a hearing a week ago today, Director Carvajal told the senators that “at this point, we have more recoveries than new infections. I believe that this shows that we are now flattening the curve.”
That’s not what flattening the curve means. “Flattening the curve” means to stagger the number of new infections over a longer period of time, although I suppose that eventually – when the BOP runs out of inmates yet to be infected – the curve will necessarily flatten when there’s no one left to get sick. But whatever else is happening, the BOP’s curve is not flattening.
Something else that’s not happening is a decrease in inmate class actions against the BOP. Those are proceeding apace around the country:
Massachusetts: A class of inmate plaintiffs who had conditions identified by the Centers for Disease Control and Prevention that heightened their risk for contracting COVID-19 or having a worse outcome from it (the “medically vulnerable”) sued the Federal Medical Center at Devens, Massachusetts, seeking proper and complete home confinement relief from the administration there. The Massachusetts federal district court denied the inmates an emergency injunction in May, but they asked for reconsideration last week. The court had denied the injunction in part because there had only been a single COVID-19 case at Devens when the injunction was denied. But since then, 24 inmates have been diagnosed as having the virus.
The injunction was also denied because the BOP had convinced the judge that it was “immediately reviewing all inmates who have COVID-19 risk factors… to determine which inmates are suitable for home confinement.” But then Devens’ warden, testifying in a different proceeding last month (one seeking compassionate release for an inmate), admitted that medical vulnerability to COVID-19 has not been considered a factor by the Devens front office in its compassionate release decisions, and that Devens refuses to transfer any prisoner to home confinement due to COVID-19, regardless of age or medical vulnerability, until the prisoner has served at least 50% of his sentence or at least 25% of his sentence with under 18 months left to serve.
The judge who originally heard the warden’s testimony in the compassionate release action found the policy to be “utterly inconsistent” with the Attorney General’s direction to maximize the use of home confinement as a tool to combat COVID-19, leaving “at-risk inmates who are not being individually assessed for release. And some of them may get very sick. Some of them may die.”
That reconsideration motion is pending.
Connecticut:In litigation over FCI Danbury, the judge has ordered the parties to give inmates a release form that would let the court release their presentence reports to the plaintiffs’ lawyers. The plaintiffs say access to the PSRs – which include a section on the defendants’ medical conditions – would help inmates vulnerable to the virus.
New York:U.S. District Judge Edgardo Ramos was preparing to rule on an inmate motion for injunction after a doctor tasked with inspecting MCC New York issued a scathing report proclaiming basic sanitation and virus screening failures. In a May 26 filing, Dr. Homer S. Venters criticized poor inmate screening and concluded that the prison has “ignored” signs that the virus may be widespread. Dr. Venters also reported a lack of access to basic sanitation, including soap. and he saw evidence that the facility is “widely infested with mice and roaches.”
Ohio:The FCI Elkton injunction came to a screeching halt after the BOP went back to the Supreme Court last week and this time convinced Associate Justice Sonia Sotomayor to grant its stay request. The Northern District of Ohio injunction issued by Judge James Gwin is now on hold, pending an appeal to the 6th Circuit Court.
North Carolina: An inmate suit over conditions at the several prisons making up the Butner Federal Correctional Complex, like the ones in Massachusetts, Ohio and Connecticut, seeks a court order that the Butner administration accelerate home confinement and compassionate release due to the rampant coronavirus at Butner (which has 571 active inmate cases and 18 deaths).
The BOP has moved to dismiss the suit, arguing that things are not as bad as the plaintiffs say they are because a lower percentage of infected inmates are dying than victims in the general public. Yesterday, the inmates replied,
More than 900 men incarcerated at Butner—almost 21 percent of Butner’s population—have tested positive for the virus that causes COVID-19. Nineteen people (including a BOP staff member) have died1—far more than at any other BOP facility. Half of those deaths happened in the 13 days since Petitioners filed this lawsuit. Infections and deaths are rapidly rising. The situation gets worse by the day.
Despite these harrowing and undisputed facts, Respondents contend that “FCC Butner’s efforts have been effective in managing infections and treating inmates.” Because they have purportedly taken some steps to mitigate the spread (however ineffective and late), Respondents argue their response to this deadly outbreak cannot possibly be deemed constitutionally defective. But that is not the law.
California: The inmates in a habeas corpus action against FCI Terminal Island and FCC Lompoc have asked the Central District of California federal court to order “a highly expedited process — for completion within no more than 48 hours — for BOP to use procedures available under the law to review members of the Class for enlargement of custody… in order to reduce the density of the prison population… and subsequently ordering the release of those granted temporary enlargement.” Separately, the complaint requests injunctive relief under the 8th Amendment to order improved conditions for all prisoners remaining at the institutions in the form of social distancing and provision of hygiene products.
(The May 10 spike represented the explosion of cases at FCI Terminal Island)
The BOP has moved to dismiss the California suit for the same reasons it has raised elsewhere, that the court lacks the power to grant the asked-for relief and that the plaintiffs have not exhausted remedies. The court should decide the issue this week.
Grinis v. Spaulding, Case No 1:20cv10738 (D. Massachusetts)
Martinez-Brooks v. Easter, Case No 3:20cv569 (D Connecticut)
Hallinan v. Scarantino, Case No 5:20hc2088 (Eastern District of North Carolina)
Wilson v. Williams, Case No 4:20cv794 (Northern District of Ohio)
Fernandez-Rodriguez v. Licon-Vitale, Case No 1:20-cv-03315 (Southern District of New York)
Wilson v. Ponce, Case No 2:20cv4451 (Central District of California)
– Thomas L. Root
Research, Strategy, Tactics and Support for Lawyers
COVID is largely dead and gone, having been demoted from pandemic to endemic, allowing for a sober review of the BOP’s response. Last week, Stat – a Boston Globe health science publication – ran a statistics-based study of how BOP managed the pandemic. The review wasn’t pretty.
Commentators have complained for several years that the BOP’s COVID stats were deeply flawed, especially because of the agency’s practice of deleting from the total number of inmates who caught COVID people who were subsequently released or transferred to another facility. To this day, no one outside the BOP has any idea of the extent of the pandemic from April 1, 2020, to May 11, 2023. As of the last day COVID stats were reported, the BOP said it had 43,681 inmates who had recovered from COVID. At its peak, the BOP reported more than 55,000 cases.
