Tag Archives: healthcare

Shocking News! BOP Grievance Procedure Doesn’t Work – Update for March 31, 2026

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

DOG BITES MAN

In journalism, a “dog bites man” story is one about something that is so obvious as to not be newsworthy. Dogs bite people all the time. What would be newsworthy would be a story about a man biting a dog.

Last week, the Prison Policy Initiative published the classic canine-chomping-guy report, a revealing study that will shock no one familiar with the Federal Bureau of Prisons.

PPI studied nearly 66,000 BOP inmate administrative remedy complaints (the so-called BP-9 and its appellate brothers, the BP-10 and BP-11) filed over a 10-year period ending in January 2024. The PPI limited its study to complaints addressing medical care. The results were as sobering as they were unsurprising.

Over the period, 32% of all medical complaints filed by inmates were rejected as “improperly filed” (not enough copies, filed late or raising two issues instead of one).  Another 51% of the complaints had been closed on appeal for similar “administrative reasons.” A scant 14% of all medical grievances made it past administrative procedural hurdles, only to be denied on the merits.

Only 940 cases of the 65,712 complaints PPI studied – 1.4% of the total – were granted relief.

Your odds of buying a winning “scratch-off” are ten times greater.

Complaints about mental health and dental care were the highest percentage of cases denied relief: 78% of dental and 83% of mental health grievances were tossed out for administrative reasons. Complaints about other forced medical treatment and forced psychotropic medication had zero cases that even cleared the procedural hurdles.

PPI said, “In theory, grievance procedures are an important tool for incarcerated people to pursue fair treatment and defend themselves in a system designed to disempower them. This power is particularly important in the context of medical care, where needs are widespread and urgent, and where failure to meet them can lead to injury, illness, and death. In practice, however, the grievance system is a black hole, a time-waster, and a deterrent to complaining at all. It’s a long and winding maze of rules and technicalities that must be cleared before an incarcerated person can get their complaint to a setting that might actually force a change: the courts.”

Prison Policy Initiative, In federal prisons, the grievance system is designed to reject nearly all complaints about medical care (March 24, 2026)

~ Thomas L. Root

Something for the Ladies – Update for December 26, 2025

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

THE WOMEN ARE RESTLESS…

More Dublin Lawsuits Expected:  Nearly 300 women who were incarcerated at the now-closed FCI Dublin prison are expected to file sexual assault claims against the Bureau of Prisons, after 103 women won an unprecedented $116 million from the agency exactly one year ago

AUSA Jevechius Bernardoni told US District Judge Yvonne Gonzalez Rogers (ED Cal.) last week that the BOP expects a Round 2 “total of 280 cases” to be filed within the next six months against the agency and individual correctional officers, bringing the total of Dublin sex abuse cases to nearly 400.

Deborah Golden, an attorney representing dozens of the women claiming abuse at FCI Dublin, said, “There could even be a Round 3.” Then-BOP Director Colette Peters ordered FCI Dublin closed and the inmates moved to other facilities in April 2024, expressing frustration at the BOP’s inability to change the abusive nature of the facility.

KTVU-TV, FCI Dublin: Nearly 300 more women expected to file sex assault claims vs. BOP (December 17, 2025)

Associated Press, US to pay nearly $116M to settle lawsuits over rampant sexual abuse at California women’s prison (December 17, 2024)

FMC Carswell Prisoners Missing Dialysis, Report Alleges:  Women prisoners at FMC Carswell allege in court filings, medical records, expert reviews and interviews that the Bureau of Prisons is providing inadequate dialysis care, putting their lives and health at risk, according to the Marshall Project. 

Carswell is the BOP’s only women’s medical center and its only facility providing in-patient dialysis for women.

Lawyers, doctors, former prison officials and incarcerated women describe missed or shortened dialysis treatments, broken or poorly maintained machines, water system failures, inadequate patient education and serious infection risks. Medical experts who reviewed the allegations said the conditions described could be preventable and potentially fatal.

Despite these concerns, the complaints allege, the BOP operates with little external oversight of its medical care. The Marshall Project said that judges overseeing compassionate release requests have said they lack authority to intervene broadly even when testimony raises significant concerns.

The Marshall Project, Women Are Sent to This Federal Prison for Dialysis. They Say It’s Killing Them. (December 16, 2025)

~ Thomas  L. Root

Beck v. Choy May Be Supreme Court “Sleeper” Case for Inmate Healthcare Rights – Update for October 10, 2025

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

BORING… UNTIL IT’S NOT

The Supreme Court heard oral argument in a case that most would think makes melba toast exciting by comparison.  But it’s a sleeper, a question of boring civil procedure that has major importance to federal inmates seeking to hold the Bureau of Prisons accountable for healthcare malpractice.

When prisoners receive negligent healthcare, many start planning to bring an 8th Amendment claim for deliberate indifference to serious medical needs.  However, proving that ham-handed medical care was inflicted deliberately is hard. Add to that the fact that since the Supreme Court’s Egbert v. Boule decision in 2022, bringing any federal constitutional claim seeking money damages – a so-called Bivens action – is just about impossible.

Impossible and unnecessary, because healthcare negligence is medical malpractice, and medical malpractice is negligence.  A prisoner can easily bring a negligence action against federal officers or employees under the Federal Tort Claims Act (explainer here).  Proving negligence is much easier than proving deliberate indifference. And, face it, most of the lousy healthcare in the BOP system is the result of negligence rather than a deliberate design to inflict cruelty on inmates. As Hanlon’s Razor cautions us, “Never attribute to malice that which is adequately explained by stupidity.”

There is a catch, however. When a prisoner brings a malpractice suit, he or she must do so in the state where the negligence occurred. The suit is judged according to state malpractice law, although it is brought in federal court. And most states have rules or statutes that require the plaintiff bringing the lawsuit to accompany his or her complaint with an affidavit from an expert that sets out the standard of care in the state and the expert’s belief that the defendant BOP doc or nurse failed to live up to it.

These are typically called “affidavits of merit,” and they are required in order to discourage frivolous lawsuits. They’re tough for inmates, however, even those with strong cases, because no expert is going to provide such an affidavit unless hired. The last time I hired one for a prisoner, it cost $5,000 (and that was eight years ago). Most inmates just don’t have that kind of money lying around.

The affidavit of merit rule has wiped out thousands of inmate FTCA suits over the years, making it impossible for them to get past the complaint stage to where they can engage in discovery (and maybe obtain a settlement). I have not been alone in arguing to courts that the law requires applying federal rules of procedure but state laws governing the substantive issue of whether malpractice has occurred.  This holding, as first-year law students can recite in their sleep, is Erie Railroad Co. v Tompkins.

Erie Railroad Co. v. Tompkins is a landmark Supreme Court decision in which the Court held that the United States does not have a general federal common law. Instead, while federal courts may follow federal procedural rules – such as the Federal Rules of Civil Procedure – they must apply state substantive law, not federal law, to lawsuits that do not involve federal questions. Most American lawyers and legal scholars regard Erie as one of the most important decisions in U.S. Supreme Court history, a decision that has been described as “go[ing] to the heart” of the American system of federalism.

The issue of whether state laws requiring an affidavit of merit with a medical malpractice complaint are substantive or procedural has now reached the Supreme Court. Last Monday, the Court heard argument in Berk v. Choy, a case that asks whether the Delaware state affidavit of merit requirement is a procedural requirement – in which case it does not apply in a federal court FTCA suit – or a substantive requirement that federal courts have to honor.

At the argument, some of the Justices viewed the requirements as “unacceptably hostile to the central conception of the federal trial system,” according to SCOTUSBlog:

Justice Elena Kagan led that group, drawing on a big-picture conception of the Federal Rules of Civil Procedure doubtless influenced by her decades teaching about the subject as a professor. For Kagan, the Delaware rules fly in the face of “the entire thrust of the Federal Rules,” which were “meant to establish a notice pleading system where all you had to do was say: ‘Here I am, here’s my claim, I’m going to be seeking damages, the end,’ and everything else was supposed to happen later in the normal course of things.”

Justice Ketanji Brown Jackson, for example, saw Delaware’s rule as hostile to the federal system: “[W]e have this Delaware law saying what is necessary to file or initiate a malpractice lawsuit as a matter of procedure. You have to have this separate [affidavit]. Notably, it’s not evidence. It is just what is a necessary step to initiate this lawsuit. And under federal law, no such thing is required. The federal law says that the action commences by filing a complaint with the court.”

Justice Sonia Sotomayor pointed to the requirements for filing an answer to a complaint: “The Federal Rules require that an answer be served in 20 days; the Delaware rule says the answer doesn’t have to be served until the affidavit’s filed.”

The defendant hospital argued that the Court shouldn’t focus on details like those cited by Jackson and Sotomayor, contending that there was no reason “that a federal court must ignore the entirety of a state statute if any part of it might conflict with a federal rule in some case.”

Several justices recognized that such an approach would ask SCOTUS to pick and choose among the various pieces of the Delaware statute.  Justice Neil Gorsuch said, “You are cracking and extracting… some things from the Delaware rule that you would apply in federal court and other things that you wouldn’t… [W]e’re creating this Frankenstein of a statute, right? We’re taking bits and pieces and adapting it, but what authority does a federal court have to rewrite Delaware law in that fashion?” 

SCOTUSBlog writer Ronald Mann said that it was difficult to determine from the argument how the Court would rule. “[I]t is safe to say that several justices will reject Delaware’s procedures, and hard to believe that Kagan won’t write something, but not at all clear what side the court, as a whole, will favor.”

A ruling invalidating the affidavit of merit requirement would be a major victory for inmate FTCA filers.

Berk v. Choy, Case No 24-440 (argued October 6, 2025)

SCOTUSBlog.com, Justices debate state limits on malpractice actions for cases in federal court (October 7, 2025)

~ Thomas L. Root

Shocking News – BOP Healthcare ‘Unacceptable’ – Update for September 15, 2025

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

DOG BITES MAN

In journalism, a ‘dog bites man’ story is one that is completely unsurprising and unremarkable. Last week, in a perfect example of this genre, the Dept. of Justice Office of Inspector General reported that yet another Bureau of Prisons facility was providing grossly substandard healthcare to inmates.

On Wednesday, the OIG issued a report on its unannounced inspection of FDC SeaTac, the detention center located about a thousand yards south of SeaTac Airport between Seattle and Tacoma, Washington. The inspection was conducted under the OIG’s authority granted in the Federal Prison Oversight Act, which requires regular independent reviews of BOP facilities.

The inspection, which occurred last December, found only three out of the FDC’s nine nursing positions and one of two pharmacist positions were filled. “At the time of our inspection,” the Report said, “10 of 20 Health Services Department positions were vacant, including the Clinical Director position (which had been vacant for at least 18 months). Moreover, based on the BOP’s own staffing projection tool, the institution appears to require a doubling in the size of its Health Services Department—from an authorized level of 20 positions to 40 positions—to meet its healthcare needs.”

The report was the sixth issued by the OIG on unannounced inspections of BOP facilities, all of which were unstinting in their criticism of BOP healthcare. A report that yet another BOP facility was not meeting inmate medical needs was

Even the FDC SeaTac Health Services Department leadership called health services staffing a crisis. The short staffing meant that Health Services “had to prioritize the provision of emergency care to inmates and we identified extensive delays in care for both routine and serious health concerns. For example, we identified concerns with FDC SeaTac’s ability to provide medical care to inmates who submit medical care requests. We selected a sample of 29 medical requests that appeared to be among the most serious, including for respiratory distress and severe pain, and found that 62 percent (18 of 29) were never addressed by a healthcare provider. We also determined that FDC SeaTac was unable to provide timely outside medical appointments for inmates with conditions that could not be addressed at the institution.”

As of November 2024, SeaTac had a backlog of 480 blood draw orders more than 30 days past due, again due to staffing shortages. The Report said, “Health Services Department employees told us that without blood test results they could not appropriately monitor the health of inmates with chronic conditions, such as diabetes, or diagnose new illnesses. For example, more than half of diabetic inmates whose records we reviewed had not received necessary diabetic testing within recommended time frames.”

OIG staff also identified unsafe practices unrelated to staffing. Crushed pills were stored loosely in plastic bags. Exam tables were filthy. Hazardous medical waste bins overflowed. Expired medications were still in use and lab specimens were left unrefrigerated. Insects crawled through clinical areas, and staff food was stored alongside medical supplies.

Writing in Forbes, Walter Pavlo said, “The inspection paints a picture not just of underfunding but of dangerously neglected standards of care.”

Sen Patty Murray (D-WA) called the conditions at the detention center unacceptable. “Individuals in federal detention should not be forced to risk their lives because they can’t get urgent medical issues addressed,” she said in a prepared statement. “I’m reaching out to the Bureau of Prisons about this report—much more needs to be done to make sure people in federal custody can get the health care they need.”

Meanwhile, last Friday, DOJ announced more than 50 new measures aimed at reducing suicides among prisoners in federal custody. The announcement follows recommendations from a department-wide working group tasked with developing strategies to address suicide in prison and jail.

While federal facilities record a lower suicide rate compared to state prisons and local jails, officials said, DOJ must work to prevent every possible death. The new framework, outlined in the Report on Actions to Reduce the Risk of Suicide by Adults in Federal Custody and Advance a Culture of Safety, sets five objectives: expanding information sharing, improving access to mental health care, fostering healthier facility environments, reducing opportunities for self-harm, and forming policy through data-driven research.

Spokesman-Review, Federal inspection finds an inmate healthcare ‘crisis’ at SeaTac detention center amid health worker shortage (September 10, 2025)

DOJ Inspector General, Inspection of the Federal Bureau of Prisons’ Federal Detention Center SeaTac (September 10, 2025)

Federal Prison Oversight Act, Pub.L. 118-71, 138 Stat. 1492 (July 25, 2024).

Shore News Network, Justice Department launches sweeping reforms to curb suicides in federal custody (September 12, 2025)

Forbes, Troubling Findings At FDC SeaTac: A 2025 OIG Inspection Report (September 10, 2025)

~ Thomas L. Root

Former BOP Officials Support Supreme Court Compassionate Release Petition – Update for May 29, 2025

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

FORMER BOP OFFICIALS SUPPORT COMPASSIONATE RELEASE CERTIORARI

scotus161130A month ago, I reported that the 6th Circuit ruled that USSG § 1B1.13(b)(6), the compassionate release guideline subsection that lets courts consider overly long sentences that could not be imposed under current law, exceeded the Sentencing Commission’s authority. Several other circuits have held the same, notably the 3rd Circuit in United States v. Rutherford.

Rutherford is now before the Supreme Court on a petition for certiorari. The Justices have already relisted the case for more consideration (usually an indication that it is getting a serious look) at tomorrow’s conference.

Evidence of the Court’s interest came in Tuesday’s announcement that the Court would review a related issue, Fernandez v. United States. The issue in that case is whether whether a combination of “extraordinary and compelling reasons” supporting a sentence reduction under 18 USC § 3582(c)(1)(A) can include reasons that may also grounds for setting aside a sentence under 28 USC § 2255, the federal habeas corpus statute that can be used to attack the constitutionality of a conviction or sentence.

We'll see about that...
We’ll see about that…

In Fernandez, a district court granted the prisoner a “compassionate release” for reasons that included the court’s belief that there was substantial evidence that he was actually innocent of the murder and that his sentence was disparately long compared to those of his co-defendants (who became informants). The 2nd Circuit reversed (and ordered Joe back to prison), holding that factors that would work for a § 2255 motion could not be relied on for § 3582(c)(1)(A) compassionate release.

The Circuit’s holding was contrary to decisions of the First and Ninth Circuits, which have each held that district courts are not restricted from considering matters under 18 USC § 3582(c)(1)(A) other than the sole restriction – rehabilitation alone cannot support compasionate release – set forth in the law by Congress. The Supreme Court will decide what limits, if any, cabin a judge on what he or she may consider as extraordinary and compassionate reasons for compassionate release.

Fernandez is Rutherford’s spiritual cousin. I would not be surprised to see certiorari granted to Rutherford, and the two cases being combined for argument and decision.

Rutherford is notable for something else: Supporting petitioner Rutherford are amicus briefs, including ones filed by FAMM, six clinical law school professors, and 12 former federal judges. Most interesting may be an amicus brief by former Bureau of Prisons officials (now corrections consultants) represented by civil rights attorney Scott Lewis at Boston firm Anderson & Krieger.

prisonhealth200313Spotlighting the BOP healthcare crisis, the brief argues that expanding access to compassionate release for inmates serving unusually long sentences would benefit the BOP because “aging, unhealthy inmates consume a disproportionate share of BOP’s scarce resources, which has cascading effects on federal prison operations and the safety and security of BOP staff, as well as inmates… [a]nd the thousands of prisoners potentially eligible for compassionate release who are serving ‘unusually long sentence[s]’ with ‘gross disparity…’ are especially likely to become elderly and unhealthy or disabled in prison.”

United States v. Bricker, Case No. 24-3286, 2025 U.S.App. LEXIS 9538 (6th Cir. April 22, 2025)

Fernandez v. United States, Case No. 24-556 (certiorari granted May 23, 2025)

Rutherford v. United States, Case No. 24-820 (petition for certiorari pending)

Brief of Amici Curiae Former Bureau of Prisons Officials In Support of Petitioner, Rutherford v. United States (filed March 5, 2025)

– Thomas L. Root

The Doctor Won’t See You Now – Update for January 6, 2025

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 REVIEW OF FMC DEVENS YIELDS ANOTHER ‘DOG BITES MAN’ MOMENT

IG230518The DOJ Office of Inspector General began making unannounced inspections of BOP facilities over a year ago, even before the Federal Prison Oversight Act – which requires the OIG to conduct periodic inspections of BOP facilities based on its assessment of the risks such prisons pose to inmates and staff – became law last summer. Last month, the OIG released a report on the its fifth such inspection, conducted last April.

For anyone who has experienced BOP healthcare, the report is a real “dog bites man” moment. That may explain how the December 11th report was issued to nearly universal yawns. Writing in Forbes last week, Walter Pavlo noted it in passing, or we would have missed it, too.

The report is harrowing and deserves a full reading.

Devens – located about 33 miles west northwest of Boston – is an administrative-security (houses all security levels of inmates) medical center for prisoners with serious medical or mental health conditions. The facility consists of a federal medical center and an adjacent minimum-security prison camp that provides inmate labor to the medical facility. Both facilities house male prisoners only.

The first prisons the OIG hit in its inspection program were regular prisons, FCI Waseca and FCI Tallahassee (both female facilities), and FCI Sheridan and FCI Lewisburg (male). This time, the OIG said, “We selected FMC Devens as the site of our fifth inspection to better understand and assess the conditions of confinement at [a federal medical facility].”

doctorhouseB250106We’ve all heard of Doctors Without Borders. The OIG found that the BOP’s variation is “Hospitals Without Doctors.” The report found it “particularly concerning” that Devens had only 76% of its Health Services Department positions filled and had only a single physician “to manage the care of the entire inmate population of approximately 941 inmates: 2 of the institution’s 6 physicians were on extended leave without pay, and 3 other physician positions were vacant.”

Having a Clinical Director would have provided a second physician, but the CD, “who leads the provision of preventive health services and provides standing orders for nurses,” retired two months after the inspection. As of October 5, 2024, the report said, “the position remained vacant… leaving FMC Devens without this critical medical role filled and only one physician at the institution to provide daily patient care.”

This is hardly surprising: a doctor at FMC Devens makes about $282,000 a year. A physician at a nearby hospital emergency department earns about $415,300. Physician assistants and nurse practitioners at FMC Devens earn between $72,000 and $124,000; the same practitioners at a nearby hospital earn an average salary of $141,000.

BOP Director Colette Peters told a Congressional subcommittee last summer that a CO quit Devens to go to work at a local grocery store for better pay.

Half of the pharmacy positions, about a quarter of nursing positions, and the Chief Dental Officer position were vacant. Only 61% of the Psychology Dept positions are filled. The OIG said, “We are concerned that the staffing crisis at FMC Devens has cascading effects on its ability to care for its inmates and limits the quality and quantity of medical services it can provide, including for inmates who were transferred there expressly for its specific medical programs.”

The report also identified “concerns related to the quality of healthcare provided to inmates,” lack of preventive healthcare screening, inappropriate placement of inmates in the Memory Disorder Unit (MDU), and inconsistent processes for requesting and accessing care.” The inspectors found that 57 outside medical appointments for inmates were yet to be scheduled and were on average 53 days overdue at the time of our inspection due to outside medical provider cancellations and a lack of COs to escort inmates to scheduled appointments.

medical told you I was sick221017The OIG found “inconsistencies regarding inmates’ access to medical care,” including routine screening for diabetes and cognitive impairment, and “an apparent inconsistency” in how Health Services determined what constituted a need for sick cal. The report drily observed that “[t]his inconsistency may limit an inmate’s ability to be seen and receive medication in a timely manner, which could negatively affect their overall health.

In 2021, FMC Devens got $150,000 in First Step money to build a LifeSkills Laboratory, a space designed for inmates with serious mental illnesses to practice routine skills. More than three years later, the lab had yet to be used for programming.  

Taking government money for a project and then not carrying through can get you convicted if you aren’t the government…

DOJ Inspector General, Inspection of the Federal Bureau of Prisons’ Federal Medical Center Devens (December 11, 2024)

Federal Prison Oversight Act, Pub. L. No. 118-71, 138 Stat. 1492 (2024) (primarily codified at 5 U.S.C. §  413[e] )

– Thomas L. Root

Faking Suicide To Get Healthcare And Other BOP Tales of Horror – Update for May 23, 2024

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

FCI SHERIDAN IS POSTER CHILD FOR BOP DYSFUNCTION

IG230518The Department of Justice Inspector General released a report yesterday that found “serious operational deficiencies,” including “alarming staffing shortages” at the Bureau of Prisons facility in Sheridan, Oregon.

One might say that BOP dysfunction is trending.

FCI Sheridan, a medium-security men’s prison with an adjacent detention center and prison camp, was Inspector General Michael Horowitz’s third unannounced prison inspection since the IG began the program at FCI Waseca (a women’s facility) last May. That report was followed by last November’s findings on a surprise inspection at FCI Tallahassee, another women’s facility. Now, after inspecting two female facilities, the IG has focused on the other 92% of inmates, the men.

IG Horowitz is taking Jan and Dean to heart: Two girls for every boy.

The dominant theme of the Sheridan report is staffing shortages and the effect the problem has on healthcare. providing a glimpse into the depth of inmates’ frustrated enterprise:

For example, we found that, just prior to our inspection, an inmate feigned a suicide attempt in order to receive medical attention for an untreated ingrown hair that had become infected. When finally examined after the feigned suicide attempt, he required hospitalization for 5 days to treat the infection.

gottaso240523No doubt the prisoner was punished for his desperate caper, but only he got out of the hospital. The BOP is unlikely to have acknowledged that it shared any responsibility for turning the simple ingrown hair removal into a $50,000+ medical expense. The inmate was right: you gotta do what you gotta do, and that includes doing what it takes to get urgent healthcare from an overtaxed and uncaring bureaucracy.

The Sheridan findings are plenty harrowing, even without the illustration of the faked suicide attempt. The IG summarized them as:

Healthcare Worker Shortages: Because of short staffing in the Health Services Department, a backlog existed of 725 lab orders for blood draws or urine collection and 274 pending x-ray orders at the time of the inspection. “These backlogs cause medical conditions to go undiagnosed and leave providers unable to appropriately treat their patients,” the report said.

High Correctional Officer Vacancy Rate: A shortage of correctional officers meant that “inmates must routinely be confined to their cells during daytime hours and are therefore often unable to participate in programs and recreational activities.” What’s more, the shortage meant that “FCI Sheridan did not always have available Correctional Officers to escort inmates to external medical providers.”

Psychology Services and Education Department Staffing Shortages: “[S]erious shortages among drug treatment program employees prevented the institution from offering its Residential Drug Treatment Program (RDAP) to inmates… We also found long waitlists, some exceeding over 500 names, for other trauma-related mental health, anger management, and work skills classes.”

Sexual Misconduct Reporting: FCI Sheridan did not centrally track the number of all allegations of inmate-on-inmate sexual misconduct reported to employees. The failure “undermines the ability of… the BOP to collect data consistent with Prison Rape Elimination Act (PREA) standards that would allow them to assess and improve the effectiveness of sexual misconduct prevention efforts.”

understaffed220929

NPR reported that the staffing shortages “are among the biggest obstacles facing the federal prison system, according to this report, and contribute to other challenges at Sheridan and the more than 120 facilities like it.” Horowitz told NPR that “[i]t’s a problem that is at least 20 years in the making. It’s not going to get fixed overnight. But what these inspections show us how serious the problem has now become.” Horowitz said. “It is deeply concerning when you go to a facility like Sheridan and you hear from the staff, correctional officers, health care workers, educators, that they can’t do the jobs that they’re there to do and they want to do.”

After this third IG inspection, a trend is developing:

• Both the Tallahassee and the Sheridan inspections found “serious operational deficiencies” and “alarming” problems. At FCI Tallahassee, the alarming conditions were with the facility’s execrable food service. At Sheridan, staff shortages were “alarming.” The IG is able to be frugal, reusing the same descriptors for multiple prisons.

• All three inspections included the same disclaimer: “We did not make recommendations in this report because in our prior work we have recommended that the BOP address many of these issues at an enterprise level.” In other words, the IG was reporting on endemic BOP problems that exist throughout the system. The Sheridan report parrots the prior reports, conceding that “[m[ost of the significant issues we found at FCI Sheridan were consistent with findings the OIG has made in other recent BOP oversight work, which we have reported on publicly.”

Nothing new here, either folks.

• We’re starting to suss out the inspection tempo. The Waseca report was last May, the Tallahassee report was in November 2023, and Sheridan was this week. It looks like the IG is inspecting about two facilities a year. Certainly, there are resource considerations: it takes people to kick open the prison doors. Horowitz told a National Press Club audience last March that “[m]y 500 personnel [are] comprised mostly of auditors and law enforcement agents. We also have evaluators and inspectors. One of the things we’re doing now, by the way, is unannounced inspections of federal prisons, and those are much smaller groups compared to the auditors and the agents.”

• All three inspections found serious staffing problems, which is hardly news. The Waseca and Sheridan inspections found long delays in providing First Step Act and drug abuse programming to inmates, which the Sheridan report said resulted in inmates having “limited opportunities to prepare for successful reentry into our communities. “ All three reports found that shortages of Healthcare staff had “negatively affected healthcare treatment” (as the Tallahassee report put it). The Waseca findings were that “staff shortages in both FCI Waseca’s health services and psychology services departments… have caused delays in physical and mental health care treatment.”

• The IG reports all seem to come with some sexy news hook. Waseca’s was inmates living in basements and under leaky pipes. Tallahassee’s was moldy food and rat droppings in the chow hall. Sheridan’s was the feigned suicide attempt to get healthcare.

suicide240523“What we’ve seen over and over again, in our unannounced inspections of the Bureau of Prisons is the challenges they face in meeting their mission of making prisons safe and secure, and preparing inmates for reentry back into society,” Horowitz told NPR in an interview reported yesterday. “And this is another case where we’ve seen severe challenges that they face in fulfilling those missions.”

DOJ Inspector General, Inspection of the Federal Bureau of Prisons’ Federal Correctional Institution Sheridan (May 22, 2024)

NPR, Lack of staffing led to ‘deeply concerning’ conditions at federal prison in Oregon (May 22, 2024)

National Press Foundation, ‘The Truth Still Matters’: Justice Department Inspector General Highlights Non-Partisan Work (March 15, 2024)

– Thomas L. Root

Court Doubts BOP Medical Care Standards – Update for November 2, 2023

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

‘WE ARE STILL HUMAN’: CARSWELL MEDICAL CARE ON TRIAL IN SOUTH FLORIDA HEARING

healthbareminimum220603A woman whose 18-month federal sentence last April came with a promise by a BOP medical official that he’d personally see that she would receive the care she needed to treat her life-threatening seizure condition was back in court after only eight weeks in FMC Carswell, due to her attorney’s concern that “the BOP has proven unable to manage or prevent these life-threatening episodes.”

Suzanne Kaye suffers from severe, stress-induced seizures. She went into cardiac arrest on the floor of the courtroom last year when she was convicted of threatening to shoot FBI agents in the “f****** ass. When she was sentenced, her lawyer warned that sending her to prison could kill her.

At sentencing, the Court found that there was “no doubt” that Suzanne “does suffer from a serious health condition, in fact perhaps a number of health conditions,” that she was “medically frail,” and that “she will require much medical care.” But despite her undisputed seizure disorder and other medical ailments, the Court relied on testimony from the FMC Carswell Medical Director that the BOP could “provide Ms. Kaye with whatever medical care she needs.”

Suzanne self-surrendered in mid-July. Only two months later, her attorney told the court that Suzanne “has required emergency outside hospitalization on at least two separate occasions. Specifically, counsel has been advised that Mrs. Kaye has suffered ongoing, repeated seizures—including two major episodes—with the latest episode involving cardiac arrest. (It has also resulted in blood clots that are now not being monitored)…” The BOP’s “repeated failure is contrary to the picture painted by the government at sentencing. Counsel has also been advised fellow inmates have been forced to attempt to [provide] life-saving care during these seizures because prison officials failed to do so.”

BOPMedical221208BOP medical official Mark Holbrook told the judge in April that some inmates have medical needs beyond what the Bureau of Prisons can treat. Suzanne, he said, was not one of them. But five months later, her heart and lungs briefly stopped working on the floor of a friend’s cell. Inmates screamed at the guards to call for help. “Granny’s eyes were wide open, but you could see that the light was no longer there,” wrote Katherine Moore, one of two incarcerated women who performed CPR on Kaye until medics arrived. “She was gone.”

“That was my mistake,” Dr. Holbrook admitted to the judge last month.

The Palm Beach Post reported, “Letters from half a dozen inmates and the testimony of Carswell’s own medical director depict a standard of care unlike the one Holbrook promised. One where Kaye must depend on her fellow inmates to keep her heart beating, and doubts over the legitimacy of her seizures dampen what care she does receive.”

When vouching for Carswell, the doctor said Suzanne would have access to a neurologist to treat her seizures and a psychologist to treat the anxiety that triggers them. He also promised a combination of anti-seizure medications that would take the place of her medical marijuana. “He made several promises and several assurances. It appears none of which occurred,” Suzanne’s attorney told the judge last month. “I’m not saying he lied — maybe he meant to and he forgot — but it is inexcusable in my opinion.”

Dr. Holbrook told the judge he left a voicemail with someone he believed was Carswell’s clinical director and never heard back. Maitee Serrano-Mercado, Carswell’s clinical director, testified that she was never contacted by Holbrook, and prison staff only belatedly learned that Kaye had a history of seizures.

Still, Dr. Holbrook said he was thankful Suzanne was at Carswell because it is “the best location” for her to be provided care. “Second best” undoubtedly would be an abattoir.

DrNoBOPHealth230925The Post noted that Carswell, once dubbed by the Fort Worth Weekly as a “hospital of horrors,” is “the only federal medical facility for incarcerated women in the country. It lost its accreditation during the pandemic and has not gotten it back. Indeed, the BOP seems to have no interest in doing so.

Carswell clinical director Serrano-Mercado argued at the hearing that Suzanne’s seizures might not be real. Serrano-Mercado admitted that the staff treating Suzanne are the same who treated a woman named Gwen Rider, a Carswell inmate who committed suicide in August. Like Suzanne, Rider was sent to Carswell because she needed medical treatment for epileptic seizures. Staff accused her of faking her seizures, too.

Suzanne was hospitalized again two weeks ago. Her mother, Brenda Kaye, told The Palm Beach Post that BOP medical personnel accidentally fractured her sternum while checking to see if she exhibited a pain response.

In an email to The Post, Suzanne called the treatment of herself and other women at the prison “nothing short of torture.” “People come in here walking and leave in wheelchairs. People die here,” she wrote. “I don’t want to be one of them.”

medical told you I was sick221017After publishing this report in my newsletter last weekend, I received an email from a prisoner at Carswell. She had been present when Suzanne and two other prisoners suffered seizures:

I had run to get an officer for the first one (which was Suzanne) and she wouldn’t call it on the radio, a medical emergency so I had to run to inside [the Recreation area] and get the officers there. They came running, Once they made it over there another girl went down in a bad grand mal seizure, then another one went down, also a really bad one that seemed like it was never-ending. The rec officers did their best, then other officers showed up but medical never showed up. The officers on the scene had to put the ladies on the back of their easy-go car and drive them up to the hospital area one at a time.

The time they had broken Suzanne’s collar bone I believe [they were] trying to get her heart to beat again. Just thought I would share an experience I had firsthand to put more information out there! Medical here does not care about us. They are desensitized and should all for the most part be replaced. We are still human and do not deserve to be treated like this. 

Palm Beach Post, ‘Inexcusable’: Attorney blasts federal prison officials over Boca woman’s medical care (October 27, 2023)

Motion for Hearing (ECF 200), United States v. Kaye, Case No 9:21-cr-80039 (SD Fla., September 12, 2023)

– Thomas L. Root

Some ‘Shorts’ – Update for June 13, 2023

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

Today, a “short rocket” of odds and ends collected over the last week or so…

THE SHORT ROCKET

rocket190620Editorial Calls For Change In BOP: In an editorial bemoaning recent reports on BOP facilities and management failings, the Washington Post on Saturday demanded passage of S.3545, The Prison Accountability Act of 2022.

The Federal Bureau of Prisons generally labors in obscurity, except when a high-profile inmate arrives, as Theranos founder Elizabeth Holmes did the other day, or when a notorious one passes away, most recently FBI-agent-turned-Russian-spy Robert Hanssen.  And yet its mission — housing roughly 159,000 people convicted of federal crimes humanely and securely, and then fostering their reentry to society — is crucial to the rule of law.  The BOP operates 122 facilities at a cost of about $8.4 billion in fiscal 2023, the second-biggest budget item, after the Federal Bureau of Investigation, in the Justice Department.  With more than 34,000 personnel, the BOP is the department’s largest employer.

mismanagement210419The editorial concluded that “[i]t’s time for more attention to be paid to the BOP. A steady flow of reports has documented an agency beset by chronic problems — unsanitary kitchens, sexual assaults, an astonishing recidivism rate of around 43 percent — in urgent need of reform.” Plugging the FPOA, the Post argued, “The BOP needs stable leadership, without which consistent policy cannot be sustained, let alone reformed. Its director should be nominated by the president for a single 10-year term, subject to Senate confirmation, like the director of the FBI. A measure proposed in both houses last year would make this change, yet it languishes… The need for structural change at the BOP is clear. So are the costs of inaction.”

Washington Post, How to end the dysfunction at the Federal Bureau of Prisons (June 10, 2023)

Another Presidential Hopeful Slams First Step Act: Mike Pence – who announced his candidacy for the Republican presidential nomination last Wednesday – told an Iowa town hall event that there’s a need to “rethink” First Step, signed by then-President Trump while Pence was serving as vice president.

lock200601“I think we need to take a step back and rethink the First Step Act,” Pence said at an Iowa town hall event. “I mean we’ve got a crime wave in our major cities, and I think now more than ever we ought to be thinking about how we make penalties tougher on people who are victimizing families in this country.”

Pence’s comments reflect how sharply the Republican position on crime and criminal justice reform has shifted in the roughly four years since Trump signed First Step into law.

The Spectator noted the recent Republican phenomenon, which began with Ron DeSantis – who himself voted for a House version of First Step back in spring 2018 – going after Donald Trump for signing the bill:

The GOP’s abandonment of criminal justice reform is likely a welcome change for tough-on-crime mainstays like Senators Tom Cotton and John Kennedy, who voted against the First Step Act, while the libertarian wing of the party will be vexed. The real story will be in how these internal fights are received by primary voters, as 80 percent of Republicans said crime is a real threat in communities in a March NPR poll. Which primary candidates can run the fastest from the perception that they might be gracious to criminals?

The Hill, Pence: Time to ‘rethink’ criminal justice reform bill signed by Trump (June 7, 2023)

The Spectator, The GOP is sprinting away from criminal justice reform (June 12, 2023)

BOP Employees Charged With Lying About Dying Inmate: A BOP correctional lieutenant and a nurse are accused of ignoring the serious medical needs of a man who died under their supervision at FCI Petersburg, federal prosecutors said.

medical told you I was sick221017BOP Lt. Shronda Covington was told the 47-year-old inmate, identified in the indictment as W.W., was eating out of a trash can, urinating on himself and falling down the day before his death in January 2021 at FCI Petersburg in Hopewell, according to court documents. However, she told federal investigators that W.W. was walking around his cell, doing pushups and listening to music on January 9, 2021, the indictment alleges.

Tonya Farley, a BOP RN, has been charged with filing a false report.

The employees were charged on June 6 with violating the man’s civil rights “by showing deliberate indifference to his serious medical needs, resulting in his death,” the United States Attorney’s Office for the Eastern District of Virginia said in a news release. The man died due to heart issues on Jan. 10, 2021, according to records obtained by The Associated Press.

Rock Hill Herald, Man accused of faking illness dies in prison after medical needs are ignored, feds say (June 8, 2023)

US Attorney’s Office, Two Federal Bureau of Prisons Employees Charged with Violating the Civil Rights of an Inmate Resulting in His Death (June 7, 2023)

– Thomas L. Root

BOP: Not a ‘Common Jailor’ But A Pretty Indifferent One – Update for June 3, 2022

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

WHERE HAVE WE HEARD THIS ONE BEFORE?

Complaints about the BOP healthcare system are as common as kvetching about the food it serves. There may be a reason for that.

chickie220603Vincent “Chickie” DeMartino, serving the final 30 months of a 300-month sentence for an attempted mob hit, sought compassionate release under 18 U.S.C. § 3582(c)(1)(A)(i) because of his deteriorating health – in particular, complications with his right eye – and because of the BOP’s “cavalier attitude” in addressing his worsening medical problems.

Vince argued that his poor health and the BOP’s refusal to do anything about it constituted the “extraordinary and compelling” reasons required by the statute for a reduction of his sentence to time served.

Last week, the United States District Court for the Eastern District of New York agreed. As the Daily News colorfully put it

A Brooklyn judge sprang a violent mobster from prison because he said the federal Bureau of Prisons did a lousy job taking care of the wiseguy’s medical problems.

Federal Court Judge Raymond Dearie issued a scathing ruling Thursday, saying the feds weren’t competently treating made man Vincent “Chickie” DeMartino’s maladies. The goodfella had more than two years left of his 25-year sentence for an attempted hit on a fellow Colombo family member.

The Court found that Vince suffered from high blood pressure which puts him at severe risk of stroke and numerous ophthalmologic issues. Vince said he was essentially blind in his right eye and had 20/400 vision overall, which made him legally blind.

healthcare220224What made his condition “all the more extraordinary and compelling,” the Court held, was “the BOP’s lack of responsiveness and candor with respect to his medical conditions.” Despite the BOP being aware of the condition, the District Court said, “the record reflects a consistent pattern on the part of the BOP of downplaying Mr. DeMartino’s conditions and delaying treatment. Despite the severity of his ocular conditions, it has been a herculean task for Mr. DeMartino to see an ophthalmologist.”

A month ago, the Court told the parties that Vince required “immediate appropriate care.” The government promised the Court that Vince would see an outside specialist right away. That of course did not happen. Vince’s prior visits to the eye doc had been canceled, according to the BOP, because the facility Health Administrator asserted that the “retina specialist does not need to see the defendant again unless he is having further complications.”

This statement, charitably put, lacked the kind of candor that the government would have demanded from Vince, were the tables turned.. The Court found the statement to be “misleading, as the Health Administrator’s note omitted reference to the ophthalmologist’s recommendation that Mr. DeMartino undergo pars plana vitrectomy surgery.”

When the Court ordered the Government and BOP to provide clarification about Vince’s need for surgery from the same ophthalmologist who had recommended surgery, the Government pulled the old “bait-and-switch.” It provided a memorandum from an optometrist – not an ophthalmologist and definitely not the one who had recommended the surgery – to support the appalling lack of care. The BOP optometrist said Vince’s surgery was unnecessary, but then qualified his opinion by admitting that he could not “directly determine the need, or lack thereof, for surgery” and would need to “defer questioning related to a need for surgery and/or the urgency of surgery to an ophthalmologic surgeon.”

That’s sort of like saying “it’s definitely not going to rain tomorrow, but I have not seen a weather forecast and even if I had, I’m not a meteorologist and I really have no idea whether what I just said is right or not.”

healthbareminimum220603“All told,” the court ruled, “this record leaves the Court with the impression that the BOP has undertaken the bare minimum of care for Mr. DeMartino, limiting its efforts to ensuring that he does not require emergency surgery, but minimizing the fact that his vision is failing and refusing to implement any meaningful plan to monitor or treat the conditions in the longer term… The BOP is not a common jailor. Theirs is a far more challenging and vital responsibility. Human beings are entrusted to their care for decades on end. There is no excuse for inaction or dissembling and, in this Court’s view, no alternative to immediate release.”

Order (ECF 276), United States v. DeMartino, Case No 1:03cr265 (EDNY, May 26, 2022)

– Thomas L. Root