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

MIRACULOUS DOINGS AT THE BOP

Yesterday brought two miracles at the Bureau of Prisons, one physical and one legal.

“I’m very concerned about what I saw in there,” Barragán said during a press conference. “The bottom line here is the federal government has a duty and an obligation to protect inmates and their health.”

– 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.

BOP TAKING IT ON THE CHIN OVER COVID-19 HOME CONFINEMENT MOVING TARGET

Hand in hand with criticism of the BOP’s COVID-19 management, courts and the media are blasting the Bureau’s bungling of its CARES Act home confinement authority.

For those of you who just came in, the CARES Act authorized the BOP to send inmates to home confinement during the COVID-19 emergency, in order to get inmates with medical vulnerabilities out of prisons ahead of the novel coronavirus pandemic.  Attorney General William Barr directed the BOP to act expeditiously, and laid out a series of standards by which the BOP should measure whether an inmate should be sent home.

The BOP applied the standards, and told a lot of people they would be going home. Then, in an abrupt about-face, the BOP decided that the AG’s standards weren’t enough. The Bureau retroactively applied a requirement that the inmate have completed 50% of his or her sentence in order to qualify for CARES Act home confinement, and told many of the people in pre-release quarantine that they would not be going to home confinement after all.

Then the DOJ said that the 50% standard wasn’t a standard at all, and then the BOP said, well, maybe not a standard, just a priority. And the shell game continued…

Last week, the BOP and DOJ were sharing the flak for the snafu.

Forbes noted, “Attorney General Barr gave some direction to the BOP and it dropped the ball. Individuals who were told they were being released from prison… have now been told they are staying put. This could have been avoided. The strain on the court system has been burdened with Compassionate Release motions that have wasted the time of judges, defense attorneys and prosecutors when all along the BOP could have acted to release vulnerable inmates. These resources, this personal pain, could have been avoided if the BOP just used its own policies.”

AP wrote, “The Bureau of Prisons has given contradictory and confusing guidance how it is deciding who is released to home confinement in an effort to combat the virus, changing requirements, setting up inmates for release and backing off and refusing to explain how it decides who gets out and when.”

NBC analyst and former US Attorney Glenn Kirschner last week blamed Barr. “Shifting and changing inmate release policies have caused widespread confusion. The lack of a clear, common-sense Justice Department/Bureau of Prisons policy prompted one federal judge to sternly rebuke the government, saying the procedures were ‘illogical’ and ‘kafkaesque…’ Simply put, the Bureau of Prisons flip-flops are yet another example of Barr’s lack of leadership and a sign of a Justice Department in free fall.”

In a lawsuit by inmates at the Federal Medical Center in Devens, Massachusetts, against BOP management of the COVID-19 pandemic there, the BOP explained to the court that some of the petitioning inmates were ineligible for CARES Act release under the BOP’s 50%-of-sentence standard. The petitioners shot back, “Although Respondents use words like “required criteria” and “ineligible” to describe their decision to bar so many people from being transferred to home confinement, they cannot defeat a claim of deliberate indifference by arguing they have tied their own hands with bureaucratic red tape. That is not a defense; it’s a confession.”

Forbes, The Federal Bureau Of Prisons’ “List” Has Caused Confusion in Courts and Prisons (April 24, 2020)

AP, Federal inmates battle mixed messages on home confinement (April 28, 2020)

NBC, Is Michael Cohen getting out of prison? Why Barr’s coronavirus release rules deserve scrutiny (April 28, 2020)

Petitioner’s Reply (Dkt. 38), Grinis v. Spaulding, Case No. 20cv10738 (filed April 27, 2020)

– 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.

HOME CONFINEMENT RE-EXPLAINED YET AGAIN

Everyone thought that Attorney General William Barr was pretty clear in his March 26 and April 3 memos directing the BOP’s standards for emergency home confinement under The CARES Act. But, as I reported last week, the BOP moved the cheese, deciding that in addition to the AG’s standards, it should add the requirement that an inmate have served half of his or her sentence to be eligible for immediate home confinement placement.

By the way, everything indicates that by 50%, the BOP means one-half of the ENTIRE sentence, not just half of the 85% that nine out of ten inmates actually serve.

After a thundering herd of inmates already in quarantine were told to move back because they were not going home after all, the Dept of Justice muddied the waters last Wednesday even more, saying there was no 50% requirement at all.

The ink on that Wall Street Journal story wasn’t dry before a U.S. Attorney filed a letter in a New York in case admitting that yes, maybe there is a 50% requirement after all.

Without fanfare (which is how the BOP likes to do things, often making the agency its own worst enemy), the BOP issued an internal memorandum last Wednesday, directing that in deciding an inmate’s eligibility for CARES Act home confinement, some things are deal-breakers and some are only “sort of” deal-breakers.

For example the PATTERN score above a minimum does not exactly disqualify someone, but an inmate with a higher PATTERN score will not receive “priority treatment.” Conveniently, “priority treatment” – which sound more like an airline upgrade than an objective standard for prisoner placement – is nowhere defined. This leaves the BOP staff to read the tea leaves, and to simply deny CARES Act home confinement placement to anyone not entitled to “priority.”

On the issue of the 50%-of-sentence standard, the memo says

In addition, and in order to prioritize its limited resources, BOP has generally prioritized for home confinement those inmates who served a certain portion of their sentences, or who only have a relatively short amount of time remaining on those sentences. While these priority factors are subject to deviation in the BOP’s discretion in certain circumstances and are subject to revision as the situation progresses, at this time, the BOP is prioritizing for consideration those inmates who either have served 50% or more of their sentences, or have 18 months or less remaining on their sentences and have served 25% or more of their sentences.

Nothing is anathema to a bureaucrat like being told that he or she should exercise “discretion,” when the result of not exercising discretion is guaranteed to avoid criticism from above. Like Jim Boren said, “when in doubt, mumble.”

Politico noted that “the new standard opens the door to such releases for prisoners who have served at least 25% of their sentences and who have less than 18 months remaining on their term… Inmate advocates said the effect of the change would be modest, permitting the release of about 200 additional prisoners serving relatively short federal sentences.”

The BOP’s moving-target home confinement standards have ill served both the Bureau and the Department of Justice (with exactly which agency is the primary culprit remaining unclear). The Washington Post reported that “the early release of about 200 federal inmates to home confinement amid the coronavirus pandemic abruptly stalled earlier this week as the Bureau of Prisons and the Justice Department issued shifting, contradictory guidelines, interviews and documents show.”

Seeming especially heartless – as only a bureaucrat can be – a number of inmates who had been told they were going home (and whose families were in some cases on the way to the prisons to retrieve them) were removed from prerelease quarantine were returned to cells. The Post said Friday that DOJ is saying that “the inmates will indeed be released, though others like them might face a harder time going forward,” although as of Tuesday morning, there is no indication that this is the case.

Even the judiciary is getting exasperated. U.S. District Judge Ronnie Abrams, seemingly frustrated with DOJ’s “ever-changing guidelines” to the BOP, last Friday ordered the immediate release of an inmate who had a high risk of contracting COVID-19 from FCI Danbury, which had yet to transfer her to home confinement as promised.

Law360 reported that Judge Abrams said the DOJ’s shifting guidance to the BOP regarding home confinement and compassionate release has eroded her confidence that inmate Haena Park would be released on April 30 as scheduled.

Politico, Feds again shift guidance on prisoner releases due to coronavirus (April 23, 2020)

BOP, Home Confinement (April 22, 2020)

Law360.com, Fraudster Freed As Judge Slams ‘Ever-Changing’ DOJ Advice (April 27, 2020)

Washington Post, Amid coronavirus pandemic, federal inmates get mixed signals about home-confinement releases (April 24, 2020)

– 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.

THE WEEK IN COVID-19

A little over two weeks ago, Attorney General William Barr announced that “total of six inmates and four prison staffers have tested positive for COVID-19.” Last week, BOP admitted to 138 inmates and 59 staff sick (with eight fatalities). As of Sunday evening, April 12, the BOP’s updated numbers report 352 federal inmates and 189 federal prison staffers had tested positive.

Two more inmates have died. A 76-year old Oakdale prisoner, died of COVID-19 on Friday, and an 81-year old Butner I prisoner died on Saturday. The total now is ten.

The BOP is reporting that there are now 40 different federal facilities (and nine halfway houses) with positive COVID cases, up from 21 only a week ago.

At the same time, the BOP is moving to send the first wave of vulnerable inmates to home confinement under The CARES Act. A BOP release last week asserted that since Barr issued the March 26 memo “instructing us to prioritize home confinement as an appropriate response to the COVID-19 pandemic, the BOP has placed an additional 886 inmates on home confinement.”

There is substantial basis for taking the BOP’s numbers with a grain of salt. The agency’s COVID-19 resource page updates its numbers daily, but it notes that the numbers include only inmates and staff “who have confirmed positive test results for COVID-19.” The problem is that testing appears not be getting done, and you can count what you don’t test.

Ten days ago, the US District Court for the Eastern District of New York ordered the wardens at MCC New York and MDC Brooklyn to file twice-weekly reports with the court on the status of COVID-19 testing at the facilities. In a report filed last Friday, the wardens admitted that only 17 inmates (out of a combined population of nearly 2,500) had been tested. Only five tests had been done in the last week.

Seven of those inmates have tested positive for COVID-19, according to the report.

David Patton, Federal Defenders’ executive director, said the number of officially confirmed cases does not comport with reports he’s hearing from incarcerated clients about the apparent spread of COVID-19. “It’s hard for me to quantify how much more robust the testing ought to be, but we certainly receive a lot of reports from clients about people in their units who seem to be quite symptomatic,” Patton said.

At FCI Elkton, the BOP is reporting that only 13 inmates and 14 staff members have tested positive, Joseph Mayle, president of union representing many of Elkton COs, told a Youngstown, Ohio, TV station last Thursday that 67 inmates have either tested positive or are showing symptoms of the virus and that the entire inmate population is being isolated. Plus, he said, 44 inmates have been hospitalized, with 14 on ventilators. Twelve staff members, not the official count of nine, have tested positive, according to Mayle.

At FCI Danbury, the BOP reported a week ago that fewer than a dozen inmates and only six staff members at the prison had tested positive. On the same day, the Hartford Courant newspaper reported that “inmates claim the number is higher. ‘I am well for now,” an inmate told the Courant on April 2. “It’s ripping through here like crazy. I just got back from medical. I don’t have symptoms. But they have many confirmed cases here. That’s according to medical.”

Sure enough, as of Easter Sunday, the Danbury count had tripled to 37 inmates and 30 staff with COVID-19.

Beyond questions about the accuracy of the BOP’s numbers are complaints about quarantines. In some instances, according to Politico, inmates being quarantined before being sent to home confinement are housed near prisoners being isolated because they’re suspected of having the virus. Politico says that wives of inmates at FCI Cumberland told it the facility is using the facility’s special housing unit – single- or two-person cells where inmates remain locked down for 23 hours daily – to hold both categories of prisoners. “They’re quarantining these healthy inmates with sick inmates that are already down there,” said Angela Sanks, whose husband, Collie, was due out in 2022 and was taken to the SHU for potential release several days ago.

The spouse of an Elkton inmate said her husband, who’s due out of prison in August of next year, was one of 56 inmates whose names were called a week ago to report for quarantine so they could be sent on home confinement. “They were all told: you’re going home,” she said. But on Wednesday, 54 of the men were sent back to their cells. “They told them, sorry, you’re not going anywhere, because they’d approved only two of them to leave.”

At MDC Brooklyn, a union official accused officials of transferring inmates with COVID-19 out of quarantine and back into general population only days after they’ve tested positive. BOP officials did not respond to questions about the allegation, according to The Intercept, but the charge was then raised in a court filing by federal public defenders. If the allegation is accurate, it would “call the credibility of the BOP’s representations about the practices at MDC Brooklyn into serious question,” lawyers with the Federal Defenders of New York wrote in a letter to the judge, saying it would “speak to the risk to all the inmates from such practices that are contrary to the CDC’s advice, and in particular the risk to vulnerable inmates.”

In a video address to staff last Friday, BOP Director Michael Carvajal reported that the agency has adequate supplies of personal protective equipment, and was a priority recipient for COVID-19 test kits. He acknowledged that the Centers for Disease Control inspected FCC Forrest City last week, and has been advising FCI Oakdale staff. The Central Office has sent 45 additional COs and a medical support team to Oakdale, and has accepted help from the Ohio National Guard and Army Corps of Engineers at Elkton.

Carvajal said 10 UNICOR factories have pivoted to the manufacturing of masks, nonsurgical gowns, shields, blankets and linens, emergency water and milk supplies and hand sanitizers. He also reported that inmate movement has been cut by 80%, but that there would always be some transfers due to court order.

Georgetown University assistant law professor Shon Hopwood, wrote last week in The Appeal that no one should “look to the DOJ to release enough people to make prisons and their surrounding communities safe.”

“They are always and always have been reactive instead of proactive,” Elkton union official Mayle said.

Sentencing Law and Policy, Latest BOP numbers reveal continued increases COVID-19 cases among federal facilities, inmates and staff (and more releases to home confinement) (Apr. 10)

BOP, Inmate Death at FCI Oakdale I (Apr 10)

BOP, Inmate Death at Butner I (Apr 12)

Law.com, No Coronavirus Tests Since Friday at New York City’s Federal Lockups, Mandated Report Reveals (Apr 7)

Bureau of Prisons, Letter filed in response to Administrative Order 2020-14 (EDNY Apr 9)

Cleveland Scene, The Latest out of Elkton Federal Prison, Where Horror Show Continues Apace (Apr 10)

Hartford Courant, With 20 testing positive for coronavirus, Danbury federal prison ordered to release high-risk inmates to home confinement (Apr 4)

Politico, U.S. prisons’ virus-related release policies prompt confusion
(Apr. 10)

The Intercept, Internal Prison Guard Email Contradicts Government’s Claims To Judges About Containing Coronavirus At Federal Detention Center (Apr. 10)

COVID-19 Video Update: April 10, 2020

The Appeal, Don’t Look To The DOJ To Keep Federal Prisons And Their Surrounding Communities Safe During The Covid-19 Pandemic (Apr 8)

– Thomas L. Root