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It’s a New Year, and BOP Still Has Big Problems – Update for January 8, 2024

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

IANUS DOESN’T LIKE THE VIEW ON BOP – IN EITHER DIRECTION

ianus240108You no doubt recall from high school Latin class that the Roman god Ianus (“Janus” if you don’t like classic Latinspeak) had two faces, one looking forward into the future while the other gazes into the past. It’s where we derived “January” for the first month of the new year.

Ianus would not be happy at what his backward-looking face sees in the Bureau of Prisons’ 2022 record:

•  sex abuse-related convictions at FCI Dublin in California, FCI Marianna in Florida, FMC Carswell in Texas and FMC Lexington in Kentucky;

•  Dept of Justice Inspector General reports ripping the BOP for $2 billion in past-due maintenance, for cooking its books on the number of inmates with COVID, and for subjecting inmates at FCI Tallahassee to living conditions that the IG himself said were “something you should never have to deal with;” and

• NPR reporting that the BOP has misrepresented the accreditation of its healthcare facilities while compiling a record of ignoring or delaying medical treatment – especially in cancer care – leading to needless inmate disability and death.

Ianus’s forward-looking face isn’t so happy, either. Last week, NPR reported that while the “CDC says natural deaths happen either solely or almost entirely because of disease or old age,” 70% of the inmates who died in BOP custody over the past 13 years were under the age of 65.” NPR found that “potential issues such as medical neglect, poor prison conditions and a lack of health care resources were left unexplained once a ‘natural” death designation ended hopes of an investigation. Meanwhile, family members were left with little information about their loved one’s death.”

The BOP stonewalled NPR, failing to respond to a Freedom of Information Act request for all mortality review reports generated since 2009 and refusing to provide any official to be interviewed on the report. However, the BOP assured NPR that it has “detailed procedures to notify family members after an inmate’s death.”

That makes us all feel much better.

death200330Not NPR. It remained skeptical, citing the case of Celia Wilson. Celia, sister of Leonard Wilson – who died last April – heard from an inmate that he had collapsed on the walking track and had been taken to the hospital. The first call she got from the BOP came two days later from her brother’s case manager. “He said that my brother is communicating and we think he’s going to be just fine,” Wilson said. “We were so relieved at that point.” But the records his lawyer got from the BOP after he died told a different story. “Celia would say they think that there’s signs of life and maybe vitals are getting better,” Lenny’s lawyer told NPR. “And then we would ask for those medical records and they wouldn’t actually say that.”

Meanwhile, a federal judge in the Southern District of New York last week found that conditions at MDC Brooklyn were not just bad: they were “exceptional[ly] bad,” “dreadful” and an “ongoing tragedy.”

calcutta240108Defendant Gustavo Chavez, age 70, entered a guilty plea to drug offenses. After a guilty plea in a case like his, 18 USC § 3143 requires that a defendant be detained unless “exceptional circumstances” within the meaning of 18 USC § 3145 are found by the court.

Judge Mark Furman held that the “near-perpetual lockdowns (no longer explained by COVID-19), dreadful conditions, and lengthy delays in getting medical care” at MDC Brooklyn constituted “exceptional circumstances.” The judge’s 19-page opinion provided a litany of horrors at MDC Brooklyn, including

[c]ontraband — from drugs to cell phones — is widespread. At least four inmates have died by suicide in the past three years. It has gotten to the point that it is routine for judges in both this District and the Eastern District to give reduced sentences to defendants based on the conditions of confinement in the MDC. Prosecutors no longer even put up a fight, let alone dispute that the state of affairs is unacceptable.

In a class action suit against the BOP by female inmates over sexual abuse, U.S. District Judge Yvonne Gonzalez Rogers began a three-day evidentiary hearing last week in Oakland, California. The plaintiffs claim they endured abuse and sexual assault by BOP staff, including voyeurism, drugging and abuse during medical exams, and rape. Despite being aware of the violence and harassment for decades, the plaintiffs contend, the BOP failed to take action.

Witnesses for the government admitted that “abuse and misconduct… so “rampant” at FCI Dublin that new officials struggled to implement reforms.”

sexualassault211014An FCI Dublin deputy corrections captain said before she took the job in 2022, “here was a lot of misconduct rampant within the institution.” She admitted that before she took the job, multiple prisoners were placed in the SHU (locked up in the special housing unit) after reporting they had been assaulted.

“You say it’s not punitive, but the inmates don’t agree with that,” Judge Rogers said. “If these things were already happening, and you have the same process, how is it any different?”

“I guess we’ve improved as far as what we’ve required,” the BOP captain responded, citing regular meetings and new systems for identifying issues at the prison. She took a tissue to wipe away tears, according to a Courthouse News Service report, saying she wanted to ensure the BOP changed. Of incarcerated women, she said, “They really just want to be heard, they want somebody to listen.”

From cooking the books over inmate deaths to running facilities that mimic the Black Hole of Calcutta to letting rape and sexual abuse run “rampant” in women’s prisons, the BOP is hardly listening to anyone.

NPR, There is little scrutiny of ‘natural’ deaths behind bars (January 2, 2024)

United States v. Chavez, Case No. 22-CR-303, 2024 U.S. Dist. LEXIS 1525  (S.D.N.Y., January 4, 2024)

New York Daily News, Judge says conditions “too dreadful” at Brooklyn fed jail to lock up 70-year-old defendant (January 4, 2024)

Courthouse News Service, Misconduct ‘rampant’ at California women’s prison, deputy corrections captain testifies (January 3, 2024)

California Coalition for Women Prisoners v. BOP, Case No. 4:23-cv-4155 (ND Cal, filed Aug 16, 2023)

If you have a question, please send a new email to newsletter@lisa-legalinfo.com.

– Thomas L. Root

Notorious MCC Closing ‘Temporarily’… And Other BOP Follies of the Week – Update for August 30, 2021

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

BOP HAS ANOTHER TOUGH NEWS WEEK

I Love New York:  The Dept. of Justice announced last Thursday that the Bureau of Prisons will “temporarily” close the Metropolitan Correctional Center in New York, the high-rise jail near the Federal Courthouse in lower Manhattan.

The decrepit facility, described by the New York Daily News as “dysfunctional,” has been a headline-generating public relations disaster for the BOP in the past several years.

renovate210830The closure was described as being temporary, reminiscent of restaurant “closed for renovation” announcements to mask abandonment of the premises. Indeed, the Daily News said, “Sources were skeptical the jail would ever resume operations resembling previous years, when it held 700 or more inmates.”

The decision to close comes weeks after Deputy Attorney General Lisa O. Monaco inspected the facility “given ongoing concerns,” as the DOJ said at the time.

The New York Times reported that MCC has been criticized “by inmates, lawyers and even judges for the conditions in which prisoners have been held.” It’s the prison where two COs were indicted for lying after celebrity prisoner Jeffrey Epstein, who was facing sex-trafficking charges, was found dead in his cell in August 2019 in what was ruled a suicide. In early 2020, a handgun was found in the jail during a shakedown.

In January, the facility received its fourth warden in less than two years. As the coronavirus took hold, MCC employees weren’t able to get masks and staff restrooms ran out of soap because employees charged with refilling the dispensers were pressed into duty as COs due to staff shortages. In May 2020, a court-authorized inspection found that inmates with COVID symptoms were ignored and social distancing was almost nonexistent.

Earlier this year, the MCC “was rocked by allegations that an inmate whose lawyer says he has the mental capacity of an 8-year-old child was left in a holding cell for 24 hours while awaiting a competency evaluation,” Associated Press reported. “Around the same time, a correctional officer at the facility had also reported sexual misconduct by a superior, which officials at the jail delayed reporting to senior BOP officials.”

“The MCC has been a longstanding disgrace,” New York Federal Public Defender David Patton told the Times. “It’s cramped, dark and unsanitary. The building is falling apart. Chronic shortages of medical staff mean that people suffer for long periods of time when they have urgent medical issues.” But, Mr. Patton added, MDC Brooklyn (across the river from the MCC) has many of the same problems, and if the MCC prisoners are sent there without those problems being addressed, “this move will accomplish nothing.”

frying210830Most of the 263 inmates at the MCC will be moved to MDC Brooklyn, according to Courthouse News Service, which many may seem as “out of the frying pan and into the fire.” MDC Brooklyn, where a power outage and BOP management prevarications made the news in January 2020, is still embroiled in a lawsuit brought by the NY Federal Public Defender accusing the BOP of “false statements and stonewalling” by “refusing to provide detailed or accurate information about the conditions at MDC” during the power outage. The district court in which the suit is being heard has appointed former US Attorney General Loretta Lynch as mediator in the case.

You may recall that last April, US District Court Judge Colleen McMahon said that both MCC and MDC are “run by morons.” During a sentencing proceeding, McMahon castigated the BOP, saying the agency’s ineptitude and failure to “do anything meaningful” at the two facilities amounted to the “single thing in the five years that I was chief judge of this court that made me the craziest.”

Lynch said Friday her team has been conducting “stress tests” at MDC Brooklyn to better understand problems there, such as how to improve scheduling of in-person visits. She said the BOP and inmates should anticipate that moving additional prisoners to the Brooklyn facility will “create its own ‘stress test,’ separate and apart from the ones that we have been using,” she said.

horrendous210830Southern Comfort:  Meanwhile, Forbes published a piece last Monday describing the horrific conditions at what is left of FCI Estill after the prison was damaged by a tornado nearly 18 months ago. About 1,000 medium-security prisoners were relocated, but 66 minimum-security inmates remain, having been moved into the medium-security facility. “When the Campers arrived at the FCI, floors were covered in water, urine and feces,” Forbes reported. “Toilets were clogged, black mold and mildew could be seen throughout the facility. The vents were filthy and covered in black soot. Debris from the remaining infrastructure hung from the ceiling. Medications were suspended to inmates and anxiety ran high over COVID-19 outbreaks. The only hope for these remaining inmates was that these conditions would be short-lived and some normalcy to prison life would return. However, not much has changed in the 16 months since and these men still live in inhumane conditions.”

While the inmate count fell by 95%, “the staffing level of the facility has remained roughly the same as it was prior to the tornado (approximately 221).” That would seem to be 221 employees who could be used elsewhere…

Take This Job and Shove It:  Is it any wonder BOP employees are quitting in droves? That’s the question Business Insider asked last week. “About 3,700 staffers left the BOP from March 2020 to July 3, 2021, according to agency data… That translates to the equivalent of more than 8.4 employees departing every day during that period… Current departure numbers are even more striking because the overall number of BOP employees isn’t going up — it’s going down. In 2015, there were 37,258 employees, according to a Government Accountability Office analysis of the agency’s employment data. By 2017, that number dropped to 35,569. In 2019, it stood at 34,857.”

So much for the BOP’s much-ballyhooed hiring initiative…

job210830The COVID-19 pandemic and augmentation have increasingy strained prison workers, which could cause more prison workers to quit as staffing conditions continue to erode, union representatives told Business Insider. “I was mentally stressed out and physically drained at the end of the day,” a former custody officer at the US Penitentiary, Thomson, facility in the northwestern region of Illinois, said. “I used to dread going to work. There were way too many inmates for the amount of stuff that’s there.”

New York Daily News, NYC federal jail where Jeffrey Epstein killed himself to close (August 26, 2021)

New York Times, Justice Dept. to Close Troubled Jail Where Jeffrey Epstein Died (August 26, 2021)

The Hill, DOJ to ‘at least temporarily’ close jail where Jeffrey Epstein died (August 26, 2021)

Associated Press, U.S. Is Closing The Troubled NYC Jail Where Jeffrey Epstein Killed Himself (August 26, 2021)

Courthouse News Service, Manhattan jail closure renews concerns over Brooklyn facility conditions (August 27, 2021)

Forbes, Federal Inmates Live In Deplorable Conditions A Year After Tornado Destroyed Most of FCI Estill (August 23, 2021)

Business Insider, Unrest at the big house: federal prison workers are fed up, burned out, and heading for the exits (August 25, 2021)

– Thomas L. Root

Will BOP Director Carvajal Be The Next One to Be Sent Home? – Update for June 29, 2021

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

SOME BOP HONCHOS GET EARLY RELEASE, AND CARVAJAL MAY BE NEXT

hitroad210629The Associated Press reported last Wednesday that two Federal Bureau of Prisons Regional Directors have been relieved of their posts. Senior Biden administration officials are also considering replacing Director Michael Carvajal, whom the AP describes as being “at the center” of the “beleaguered agency’s myriad crises.”

The discussions about whether to fire Carvajal are in the preliminary stages and a final decision hasn’t yet been made, AP said it had been told by two people familiar with the matter. They were not authorized to publicly discuss the internal talks and spoke on condition of anonymity.

However, AP reported, “there’s an indication that the bureau is shaking up its senior ranks following growing criticism of chronic mismanagement, blistering reports from the Justice Department’s inspector general, and a bleak financial outlook.”

shocked191024Mismanagement at the BOP? I’m shocked.

“Since the death of Jeffrey Epstein at a federal lockup in New York in August 2019,” the AP claimed, “Associated Press has exposed one crisis after another, including rampant spread of coronavirus inside prisons and a failed response to the pandemic, escapes, deaths and critically low staffing levels that have hampered responses to emergencies.”

At least two regional directors, officials in charge of institutions in the South Central and the Southeast regions are also being replaced. BOP said the two regional directors — Juan Baltazar, Jr. and J.A. Keller — are retiring and had been planning to do so. But the sudden removal apparently was not the testimonial dinner and gold watch the two had anticipated: other people familiar with the matter said that neither had planned to leave for months and were told other officials were being appointed to their jobs.

On Wednesday, AP said, the BOP announced it was appointing wardens William Lothrop and Heriberto Tellez to the regional posts. Tellez, one of the “morons” recently referred to by Senior US District Judge Colleen McMahon, is currently in charge of MDC Brooklyn, the high-rise dungeon where a 34-year-old inmate was found dead in his cell as recently as a week ago.

Carvajal took over as director in February 2020, a month before COVID-19 began galloping through all 122 of the BOP’s facilities, infecting over 48,000 inmates and killing 255.

reel210629To be sure, the Director does not have a lot of highlights on his reel.  Nearly a third of BOP correctional officer jobs are vacant, forcing the BOP to continue to use augmentation, pressing medical, educational, office, and other staff into temporary CO duty.

Some question whether the staffing shortage will prevent the agency from maintaining security and at the same time carrying out its First Step Act programming duties. Over the past 18 months, 30 prisoners have escaped from federal lockups across the U.S. — and nearly half still have not been caught. The AP said prisoners have broken out at lockups in nearly every region of the country.

The Bureau has said it expects to bring on 1,800 new employees, and that its recent hiring initiative has been “a huge success.” But the AP reports the BOP has been slow-walking its hiring process, pausing most new hires until at least October. Officers at several facilities have held protests calling for Carvajal to be fired.

Late last week, Shane Fausey, national president of the Council of Prison Locals, AFL-CIO (representing 30,000 BOP employees) told Politico, “A clear and dangerous staffing crisis in the Bureau of Prisons, as explicitly outlined in a number of OIG reports and a recent scathing report by the GAO, has pushed this agency beyond its limits. Our employees and officers continue to endure unrelenting overtime and reassignments as the budgetary shortfall is preventing the hiring of much needed Correctional Officers.”

Meanwhile, President Biden’s detailed 2022 BOP budget request does not throw the BOP a life preserver. It includes a reduction of $267 million to reflect decreases in the BOP’s inmate population — a decrease that is a result, in part, of the CARES Act and increased use of the Elderly Offenders Home Detention program.

Jail151220But it’s not just the staff shortage and cash crunch. The BOP continues to be plagued by embarrassing allegations of misconduct. Although this predates Carvajal’s administration, a loaded gun was found smuggled into MCC New York not long after Epstein committed suicide. In the last month, the DOJ Inspector General issued a report about security lapses at BOP minimum-security facilities. Last week, the family of Jamel Floyd – who died a year ago at MDC Brooklyn after being pepper-sprayed by guards (only a few months before scheduled release after 15 years) – sued the BOP.

The Floyd suit came only a few days after a suit filed in Denver by BOP employees alleged that USP Florence special operations (SORT) team members fired pepper spray, plastic bullets, and pepper balls at their unarmed, administrative colleagues during a training exercise, in “inappropriate and dangerous” training episodes. Those failings prompted the DOJ Inspector General to recommend that some of its special operations training be suspended until better safeguards could be put in place.

“We believe that staff members at the Bureau of Prisons abused their coworkers in a way that undermines, or should undermine, the faith of the public in the ability to do their jobs,” said attorney Ed Aro, who is representing four current and former Bureau of Prison employees who say they were injured and traumatized by the training.

Last week, Vanity Fair published a long piece chronicling pretrial detainee Ghislaine Maxwell’s complaints about inhumane treatment at MCC New York.

And we end with an Eastern District of Virginia federal judge last week angrily and publicly blaming the BOP for the suicide death of a presentence defendant.

angryjudge190822The man had been sent to FMC Butner – a BOP medical and psychiatric center – for a mental evaluation. He was declared competent to enter a plea and returned to a local jail. After the man pled guilty but before sentencing, Judge T.S. Ellis III again became concerned about the man’s mental health and ordered him back to FMC Butner for further care.  BOP officials refused him unless the defendant was deemed incompetent again or required a new psychiatric evaluation. So the defendant went to a local jail where he took his own life on May 18.

At a hearing on June 24, the judge excoriated the BOP for refusing to take the man and failing to provide his medical records to the local jail. “If I issue an order, you must obey it,” he told prison officials who participated in the hearing. “Nobody in the Bureau of Prisons should ever decide they don’t want to obey my order because they think it violates the law. I trump their view of the law.”

Welcome to the culture of the BOP, Your Honor.

Associated Press, AP sources: Officials mulling ousting US prisons director (June 23, 2021)

Newsweek, Trump-Appointed Bureau of Prisons Director Michael Carvajal Could Be Replaced Amid Crises (June 23, 2021)

Midnight Report, Federal Bureau of Prisons Oust Regional Directors in South Central and Southeast Regions (June 23, 2021)

Time, After His 2020 Death in a New York Jail Cell, Jamel Floyd’s Family File Lawsuit Against Bureau of Prisons (June 24, 2021)

Denver Post, Supermax special ops team used pepper spray, plastic bullets on unarmed colleagues during training exercise, lawsuit alleges (June 23, 2021)

Politico, Union boss: Bureau of Prisons faces dangerous cash crunch (June 25, 2021)

Vanity Fair, Inside Ghislaine Maxwell’s Battle With the Bureau of Prisons (June 24, 2021)

Washington Post, Judge faults federal prison system after suicide of Great Falls man (June 25, 2021)

– Thomas L. Root

The Big Payoff at BOP – Update for May 18, 2021

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

SEX ABUSE AND MORONS

payoff210518Fourteen female prisoners who alleged in a lawsuit two years ago that they were sexually abused by officers at the Federal Correctional Complex Coleman women’s camp have settled with the government.

The Attorney General has approved the settlement, but the funds have not yet been released. An attorney for one of the women said he could not discuss the amount of the settlement until the money is released. Another lawyer, however, told the Tampa Bay Times (which first reported the settlement) that his three clients will share $1.26 million.

The suit contended that Bureau of Prisons correctional officers Coleman sexually abused female inmates for years and threatened the women if they didn’t comply. The women said they feared that if they came forward they’d be sent to another prison far from their families, interrupting the education and work programs they had at Coleman. The COs, who were identified by name in the litigation, have all retired or resigned, and some with full benefits from the bureau, according to the suit. None has faced any criminal charges.

It may be tougher for female inmates than for male ones, as the BOP’s cave-in on this suit suggests.

And not just for female inmates. A few years ago, 524 female BOP employees received a $20 million settlement of a suit that alleged Coleman management didn’t protect them from sexual harassment by male inmates and dissuaded the employees from documenting their complaints.

suit201102Meanwhile, for the second time in recent weeks, a lawsuit was filed in Kentucky accusing a Lexington Federal Medical Center employee of raping an inmate at the women’s minimum-security camp. A prior suit alleged that a CO raped a female inmate, according to court records. The new filing accuses an instructor in the RDAP program (who is no longer a BOP employee) of raping a different female inmate.

RDAP,  the intensive Residential Drug Abuse Program, rewards inmates who successfully complete the 9-12 month regimen with up to one year off their sentences. An instructor, whose decision could eject an inmate from RDAP and thereby deprive her of the year off, would have substantial leverage over an inmate in the program.

The BOP told the Herald-Leader it does not comment on pending litigation. One of the attorneys representing the two women, said, “Sexual misconduct in our nation’s prisons is not limited to one bad actor or one specific facility… We intend to hold these bad actors responsible for the harm they have caused.”

On a different topic, a week ago I reported on newspaper reports on the condition of MCC New York and MDC Brooklyn. Last week, the New York Daily News reported that BOP “brass visited New York City’s federal jails last weekend — one day after the Daily News highlighted a judge’s scathing comments that the lockups were “run by morons.”

“The same day the BOP learned of the recent commentary about the conditions at MCC New York and MDC Brooklyn, staff were sent from agency headquarters and its Northeast Regional Office to review and ensure conditions for safety and security are maintained,” a BOP spokeswoman told the paper.

Apparently, the facilities had a bit of notice on the inspection. An MCC inmate told The News “that orderlies worked to clean up the jail until 3 a.m. on Saturday, hours before the BOP officials arrived. Correctional staff told detainees the visit was due to the jail being ‘in the newspaper,’ according to the inmate who is not allowed to speak to the press. Correctional officers brushed off McMahon’s comments, saying they were directed at captains and wardens, the inmate said.”

potemkin210518Potemkin would have been proud. But probably not so the MDC and MCC managers, who are guilty of the cardinal bureaucratic sin: they made their bosses look bad, something that is not easily forgiven.

Other sources told the paper that “inmates were being shuffled to different units and transferred to MDC for repairs at MCC.”

Finally, the numbers: As of Friday, the BOP said it had 73 inmates and 153 staff with COVID. The percentage of vaccinated staff stood at 50.4%, inmates at 40.5%. One more death, a USP Yazoo City inmate, raised the federal inmate death toll to 250.

Miami Herald, Feds pay seven figures to settle suit over systemic sexual abuse at Florida women’s prison (May 13, 2021)

Tampa Bay Times, Lawsuit settled in which 15 women alleged sexual abuse at Florida prison (May 6, 2021)

Lexington Herald-Leader, Second Lexington FMC inmate files lawsuit accusing prison employee of rape (May 15, 2021)

New York Daily News, NYC federal jails visited by Bureau of Prisons bigwigs after judge’s criticism (May 14, 2010)

BOP, Inmate Death at USP Yazoo City (May 13, 2021)

– Thomas L. Root

Dog Bites Man: Judge Says NYC BOP Facilities Run By Morons – Update for May 14, 2021

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

JUDGE SAYS “DISGUSTING, INHUMAN” BOP NYC FACILITIES ARE RUN BY MORONS

moron210514A senior Federal judge who navigated her Manhattan-based court through the pandemic denounced conditions at MDC Brooklyn and MCC New York as “disgusting” and “inhuman” during the sentencing last month of a woman who spent months in solitary confinement after contracting COVID-19.

US District Court Judge Colleen McMahon said in a transcript just obtained by the Washington Post that the facilities are “run by morons.” During the sentencing, McMahon castigated the BOP, saying the agency’s ineptitude and failure to “do anything meaningful” at the MCC in Manhattan and MDC Brooklyn amounted to the “single thing in the five years that I was chief judge of this court that made me the craziest.”

“It is the finding of this court that the conditions to which the defendant was subjected are as disgusting, inhuman as anything I’ve heard about any Colombian prison,” McMahon said on the record, “but more so because we’re supposed to be better than that.”

The BOP responded in a statement that it “takes seriously our duty to protect the individuals entrusted in our custody, as well as maintain the safety of correctional staff and the community.”

plague200406Meanwhile, The Trentonian reported last week that FCI Fort Dix set as COVID-19 record for the worst outbreaks of any federal facility. New Jersey US Senators Bob Menendez and Cory Booker, both Democrats, called on the BOP last month to “prioritize the vaccination program” at FCI Fort Dix. More than 70% of the 2,800 prisoners at Fort Dix have tested positive for COVID-19 since the pandemic began. As of last week, 52% of Fort Dix inmates have been vaccinated.

Also last week, the Legislative Committee of the Federal Public and Community Defenders wrote a 16-page letter to Senate Judiciary Chairman Richard Durbin (D-Illinois) and Ranking Member Charles Grassley (R-Iowa) asking for Congressional action to reform the BOP in areas as varied as inmate healthcare to compassionate release to First Step Act programming credits.

“Although the Biden Administration has taken significant steps to beat back COVID-19 in the community,” the letter said, “individuals in BOP custody remain at high risk. Over a year into the pandemic, they are subject to harsh and restrictive conditions of confinement and lack adequate access to medical care, mental health services, and programming. The improvements to programming promised by the First Step Act  generally stand unfulfilled.”

Most significant was criticism of BOP healthcare that went beyond the pandemic: “Dr. Homer Venters, a physician and epidemiologist who has inspected several BOP facilities to assess their COVID-19 response, identified a “disturbing lack of access to care when a new medical problem is encountered” and is concerned that “[w]ithout a fundamental shift in how BOP approaches… health services, people in BOP custody will continue to suffer from preventable illness and death, including the inevitable and subsequent infectious disease outbreaks.”

COVIDvaccine201221The letter also took aim at the high vaccine refusal rate by BOP staff (currently 50.5% refused), staffing shortages, and the BOP’s poor record on granting compassionate release.

The letter complains that the BOP’s proposed rule on awarding earned time credit “impermissibly restricts an individual’s ability to earn time credits, makes it too easy to lose those credits, and unduly excludes broad categories from the earned time credit system. In short, these provisions kneecap the FSA’s incentive structure and make it less likely individuals will participate in programs and activities to reduce recidivism and increase public safety.” The letter notes that if a prisoner programmed 40 hours a week, it would take more time to earn a year’s credit than the length of the average federal sentence.

The Trentonian, Ft Dix FCI has largest total COVID-19 cases among U.S. federal prisons (May 4, 2021)

Federal Public and Community Defenders, Letter to Sens Durbin and Grassley (May 4, 2021)

Washington Post, Judge says ‘morons’ run New York’s federal jails, denounces ‘inhuman’ conditions (May 7, 2021)

– Thomas L. Root

BOP 4, Inmates 0 in COVID-19 Litigation – Update for June 15, 2020

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

THE WEEK IN COVID-19 LITIGATION

prisonhealth200313As 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.”

destroyevidence200615Judge 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.

Lose200615The 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)

– Thomas L. Root

At Halftime, It’s Inmates 1, BOP 0 – Update for March 26, 2020

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

FEDERAL DEFENDERS WIN REMAND AGAINST BOP

Last winter, during the water and electrical breakdowns at MDC Brooklyn, the Federal public defenders organization sued the BOP and then-Warden Herman Quay, claiming they curtailed inmate-attorney visits in violation of the Administrative Procedure Act and the 6th Amendment. A district court threw the suit out, ruling that the Federal Defenders lacked the right to bring the action.

accessdenied191111Last week, the 2nd Circuit reversed. It ruled that the district court failed to consider BOP regulations in its zone-of-interests analysis and misconstrued the 6th Amendment claim: the Federal Defenders invoked the court’s traditional equitable powers in the 6th Amendment claim against Defendants, but the district court treated the claim as arising under the Constitution itself.

The Circuit remanded the case, and directed the district court “to consider appointing a master to mediate the parties’ differences at the earliest possible time to ensure that the Federal Defenders have meaningful, continuous access to their clients either in person or by remote access pending adjudication of these claims, as these claims may be amended to address similar issues of access arising during the current public health emergency.”

On Tuesday, the District Court appointed former Attorney General Loretta Lynch, now a partner at white-shoe law firm Paul, Weiss, Rifkind, Wharton & Garrison LLP, to referee the dispute. My read is that the 2nd Circuit wants this case settled, and wants the attorneys and their clients to come out on top.

Federal Defenders of New York v. BOP, 2020 U.S. App. LEXIS 8845 (2nd Cir Mar 20, 2020)

Law 360, Loretta Lynch To Referee Dispute Over Detainees’ Atty Access (March 24, 2020)

– Thomas L. Root

It Wasn’t a Lie, Just a “Mishandled” Communication – Update for October 4, 2019

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

MDC BROOKLYN’S PROBLEMS EXISTED LONG BEFORE LAST JANUARY

Last January’s power outage at MDC Brooklyn did not cause the heating problem that left inmates freezing in their cells, according to a report issued last week by the Dept. of Justice Inspector General. Instead, heat issues at the MDC had been a continuing problem well before the January 2019 fire that caused a partial power outage.

freeze191004Prison officials had known that the heating problem was a longstanding issue that had never been fixed. The heat problems were due to a lack of equipment to monitor temperatures in the jail, which reached as low as 59 degrees a week before the power outage and often went above 80 degrees even in the winter months, the report found.

The investigation also found that prison officials mishandled the power outage.

As half a dozen judges and advocates suspected in the days after the outage, inmates were left trapped inside without access to their lawyers or information about why they couldn’t visit with family members, the report found. “This is particularly problematic in view of the facility’s population of pre-trial detainees, some of whom may have required daily access to counsel to prepare for trial,” Inspector General Michael Horowitz said. Prison officials also didn’t communicate with the legal counsel, relatives and the public and mismanaged two medical issues that happened during the outage, the report said.

liar151213The IG’s report was immediately criticized by some commentators. The MDC warden at the time, Herman Quay, was accused of lying about conditions during the outage to the public, to the media and even to the U.S. Attorney. He has since been promoted and a new warden was installed at MDC.

The Intercept complained that the report “relies heavily on the accounts of the very officials who presided over the crisis, draws minimally from the experiences of the people who endured it, and seems more preoccupied with the episode as a public relations blunder than as a humanitarian disaster. The report does not address the chronic deception in jail officials’ statements during and after the crisis.”

“This report confirms that there have been longstanding management problems at MDC that must be rectified,” said Rep. Nydia Velázquez (D-Brooklyn).

In a response to the investigation, Politico reported, the BOP said it will complete an upgrade to its heating, cooling, and ventilation equipment. It also agreed to begin giving inmates sweat suits and thermal underwear as part of their standard-issue clothing package until all the heating problems are resolved.

DOJ Office of Inspector General, Review and Inspection of Metropolitan Detention Center Brooklyn Facilities Issues and Related Impacts on Inmates (Sept. 26)

Politico, Investigation finds widespread infrastructure, leadership failures at Brooklyn federal jail (Sept. 26)

The Intercept, Inspector General Report Treated Freezing Federal Jail As A PR Blunder Rather Than A Humanitarian Disaster (Sept. 28)

– Thomas L. Root