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Has the BOP Just Had Its ‘George Floyd’ Moment? – Update for October 17, 2022

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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 MISTREATMENT OF DYING INMATE DYING OF CANCER SPARKS OUTRAGE

The murder of George Floyd by Minneapolis police officer Derek Chavin captured the nation’s attention and fury like no event in the recent history of policing and race. With an angry opinion from U.S. District Judge Roy Dalton (Middle District of Florida), the late Frederick Mervin Bardell’s tragic mistreatment may do the same for the Federal Bureau of Prisons.

Fred was housed at FCI Seagoville, finishing a 151-month sentence for possession of child pornography, when he developed an intestinal mass that turned into metastatic colon cancer.  As Judge Dalton put it, “Frederick Marvin Bardell was a convicted child pornographer. He was also a human being.”

In November 2020, Fred filed a motion for compassionate release, complaining that he suffered from “unspecified bleeding,” “metastatic liver lesions (suspected cancer),” and “malignancy in his colon.” His medical expert averred that Fred “ha[d] a high likelihood of having cancer of the colon with likely metastasis to the liver.”

medical told you I was sick221017The BOP admitted that Fred has “liver lesions highly suspicious for metastatic disease” but argued that “to date, no one has determined that [his] condition is terminal.” The Government also maintained that there was no indication that Fred could not receive adequate care in custody. Based on the Government’s assurance, the Court denied his November compassionate release motion.

You have to love the construction of the argument. It is not that the BOP is saying it CAN and WILL provide Fred with adequate medical care. Instead, it’s just that Fred can’t prove the BOP is unable to do so. But, as Judge Dalton wrote just two weeks ago, “As we now know, it was not true that Mr. Bardell could receive adequate care in custody, and, regrettably, his condition was indeed terminal.”

Fred filed a second compassionate release motion in February 2021, three months later. The Court granted this motion, which was supported by an affidavit from an oncologist that Fred was likely dying of metastatic colon cancer. The Court ordered Fred released as soon as the Probation Office and Fred’s attorney worked out a release plan appropriate for someone in Fred’s condition.

The BOP didn’t wait for any release plan. In fact, the BOP staff at Seagoville didn’t read the details in the release order at all. Instead, the BOP contacted Fred’s parents and demanded that they fork over $500 for a plane ticket for Fred. As soon as they did, Seagoville sent its inmate driver – who said he was told not to get out of the car – to Dallas-Fort Worth Airport, where Fred – who was “skin and bones, wheelchair dependent, and bladder and bowel incontinent” – was unceremoniously dumped on the curb without help or even a wheelchair.

With the aid of strangers, Fred was able to get loaded into a wheelchair, get on the plane, suffer through a change of planes in Atlanta, and finally arrive in Jacksonville. Fred, “who had a tumor protruding from his stomach and was visibly weak and bleeding, unsurprisingly soiled himself during this not so bon voyage,” the judge wrote.

bardell221017Fred’s lawyer and parents met him at the airport. Fred’s father had to take off his shirt and place it under his son to keep the blood and feces off the car seat. They took Fred directly to a hospital, where he died nine days later. His specialist said that if he had gotten prompt treatment when was first found, he would have had a 71% chance of recovery.

Two weeks ago, Judge Roy Dalton held the BOP in civil contempt for ignoring his release order. The judge was clearly frustrated that he could not do more. In what Reason called “a scathing opinion,” the Judge expressed dismay that “while the sanctions imposed are remedial in nature and restricted by law, the Court admonishes the BOP and [FCI Seagoville] Warden Zook for their blatant violation of a Court Order and sheer disregard for human dignity.” Judge Dalton wrote, “The BOP as an institution and Warden Zook as an individual should be deeply ashamed of the circumstances surrounding the last stages of Mr. Bardell’s incarceration and indeed his life. No individual who is incarcerated by order of the Court should be stripped of his right to simple human dignity as a consequence.”

investigate170724The Court recommended that the Attorney General investigate “the circumstances of Mr. Bardell’s confinement and treatment, the failure of the BOP to respond to his medical needs, and the BOP’s misrepresentations in connection with the compassionate release briefing regarding the seriousness of his condition,” the opinion states. “On a parallel track, the Court retains jurisdiction to continue investigating the circumstances surrounding the truthfulness of the assertions in the Government’s filings as well as Mr. Bardell’s incarceration and release.”

The Judge’s October 4 opinion appears to have gained national attention through an article in Reason, which also published accounts several years ago about three deaths from alleged medical neglect at FCI Aliceville.  At the time, Reason noted

The Bureau of Prisons listed the cause of death in all three cases as “natural causes,” according to public records obtained by Reason. That classification, while technically correct, erases the culpability of the agency. It’s like claiming a man accidentally drowned after you refused to throw him a life preserver.

But the agency doesn’t want to talk about what happened. When asked for more information, the BOP public affairs office said the agency “does not disclose the details of an inmate’s death.” The FCI Aliceville public information officer did not return multiple requests for comment. Reason has been waiting for more than a year for additional Freedom of Information Act records concerning these incidents.

sorry190124But in Fred’s case, the BOP’s response was different. BOP Director Colette Peters released a statement offering her condolences to the Bardell family but declining to comment on the specifics of the case because it was the subject of continuing litigation. She promised to cooperate with any investigations into the matter. “My heart goes out to Mr. Bardell’s family, to whom I send my deepest condolences,” Ms. Peters (who was not Director when Mr. Bardell’s mistreatment occurred) said. “Humane treatment of the men and women in Bureau of Prisons custody is a paramount priority. In instances where we have failed at upholding our mission, we are taking steps to find out what happened, how it happened, and how we can prevent it from happening in the future.”

Meanwhile, official attention is being paid to the matter. Senate Judiciary Chairman Richard J. Durbin (D-IL) wrote on Twitter that “the details unveiled in this case are appalling, and may not be isolated.” He called on the Justice Department’s inspector general “to investigate B.O.P.’s treatment of medically vulnerable individuals both while incarcerated and upon their release.”

On Friday, the Justice Department inspector general’s office announced it was opening an investigation into the case.

United States v. Bardell, Case No 6:11-cr-401, 2022 U.S.Dist. LEXIS 181785 (M.D. Fla., October 4, 2022)

Reason, Judge Holds Federal Bureau of Prisons in Contempt for Allowing Man To Waste Away From Untreated Cancer (October 10, 2022)

Washington Post, Judge blasts Bureau of Prisons’ treatment of dying prisoner (October 14, 2022)

New York Times, Judge Holds Prison Officials in Contempt for Treatment of Terminally Ill Inmate (October 13, 2022)

– Thomas L. Root

COVID Emergency Too Good To End? – Update for September 30, 2022

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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.

WHO CARES ABOUT THE END OF THE PANDEMIC?

President Biden, a man who always carefully weighs his words, told CBS last week that “the pandemic is over. We still have a problem with Covid. We’re still doing a lot of work on it. It’s — but the pandemic is over.”

deadcovid210914Last week, Sen Roger Marshall (R-KS), who is an obstetrician/ gynecologist, introduced a resolution that would end the national emergency first declared by President Donald J. Trump in March 2020. President Biden extended the national emergency in February 2021 and again in February 2022. The resolution has virtually no chance of passing both houses of Congress.

And at yesterday’s Senate Judiciary Committee oversight hearing, Bureau of Prisons Director Colette S. Peters was braced by Sen Tom Cotton (R-AR), a bomb-thrower entranced by the sound of his own voice, who took time out from his off-topic argument with Sen Cory Booker (D-NJ) about who hated fentanyl more to demand that Peters admit that the pandemic was over. Director Peters wisely demurred.

So is the pandemic over? And does that really matter?

cotton171226Under the National Emergencies Act, a national emergency continues until (1) the president does not issue an annual continuation notice, (2) the president terminates it, or (3) a joint resolution of Congress terminates it. Because Biden most recently issued an annual continuation notice as of March 1, 2022, the national emergency will end on February 28, 2023 (absent additional action to extend it further or terminate it early).

All of this matters because CARES Act authority granted to the Bureau of Prisons to place prisoners on home confinement ends 30 days after the pandemic national emergency expires.

(Note: There are two emergencies out there.  One is the national emergency declared under the National Emergencies Act.  The other is the Covid-19 public health emergency, declared in January 2020 by the Health and Human Services Secretary and last extended in July 2022 for another 90 days. With all due respect to the coronavirus, the one we care about is the National Emergencies Act emergency. The Covid-19 public health emergency has no effect on Sec 12003 of the CARES Act).

The inmate rumor du jour for months has been that CARES Act placement has ended, will end imminently, or will end in February 2023. None of this is right, unless Biden declares the national emergency to be at an end. As of March 2020, 60 national emergencies had been declared since the National Emergencies Act was enacted in 1976. Over half of those have been renewed annually. The longest continuing national emergency dates back to Iran hostage crisis, 43 years ago.

But will the national emergency end in February 2023? The Wall Street Journal  last week suggested it would not:

moneyhum170419The reason is almost certainly money. [The CARES Act] enables the government to hand out billions of dollars in welfare benefits to millions of people as long as the emergency is in effect. This includes more generous food stamps and a restriction on state work requirements. It also limits states from removing from their Medicaid rolls individuals who are otherwise no longer financially eligible… Only weeks ago the Administration used a separate national emergency declaration related to the pandemic to legally justify canceling some $500 billion in student debt… Mr. Biden seems to want it both ways. He wants to reassure Americans tired of restrictions on their way of life that the pandemic is over and they can get on with their lives. But he wants to retain the official emergency so he can continue to expand the welfare state and force states to comply.

A final note.  Sen Richard Durbin, chairman of the Judiciary Committee, opened yesterday’s BOP oversight hearing by complaining, among other things, that the BOP had underused CARES Act and compassionate release authority.  Notwithstanding Sen. Cotton’s wacky views that the CARES Act has murderers and rapists again roaming our streets, there does not seem to be a lot of sentiment that CARES Act home confinement should end too soon.

CNN, Biden: ‘The pandemic is over’ (September 18, 2022)

Medical Economics, Senator moves to end COVID-19 pandemic national emergency (September 23, 2022)

Morgan Lewis, Preparing for the End of Covid-19 Emergency Periods: To-Dos for Plan Sponsors and Administrator (July 20, 2022)

Wall Street Journal, Is the Pandemic ‘Over,’ or Not? (September 19, 2022)

– Thomas L. Root

BOP Director to Be Grilled By Senate Judiciary Committee Today – Update for September 29, 2022

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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.

DURBIN TO GRILL BOP DIRECTOR AT THURSDAY JUDICIARY HEARING

peters220929When Colette Peters was sworn in last month as BOP director, her honeymoon with Sen Richard Durbin (D-IL), chairman of the Judiciary Committee, lasted all of three days.

Durbin’s dislike of prior Director Michael Carvajal was well known, and publicly, the Senator was elated at Peters’ appointment. But when Durbin learned the BOP had given Carvajal a 30-day consulting contract to assist the new director with the transition, he was much less enthused.

At the time, Durbin threatened to hold another oversight hearing on the BOP. He is about to make good on that threat.

The Judiciary Committee will conduct a BOP oversight hearing today. Peters is the primary witness, but other witnesses include Shane Fausey, President of the Council of Prison Locals national union; John Wetzel, a prison consultant and former head of the Pennsylvania Dept. of Corrections; and Cecilia Cardenas of Davenport, Iowa.

It is not clear who Ms. Cardenas is, but a person of that name and from that area was released by the BOP last January.

understaffed220929

Fausey is probably on the witness list because of his outspoken criticism of BOP staffing levels. Fausey told a reporter last week that much of the BOP staffing decline is due to declining morale as general environmental conditions are declining. He said BOP staff is “exhausted” as mandatory overtime has “skyrocketed” at high-security institutions across the country.

Last week, BOP employees at FCI Raybrook in upstate New York posted a sign along a highway there saying the federal prison is “dangerously understaffed” and asks the community if it feels safe.

I expect that a major topic of discussion will be the Federal Prison Oversight Act, introduced yesterday by Sens Jon Ossoff (D-GA), Mike Braun (R-IN), and  Durbin. The Federal Prison Oversight Act, according to a Durbin press release, will require the Dept of Justice’s Inspector General to

conduct comprehensive, risk-based inspections of the [BOP’s] 122 facilities to identify problems that affect incarcerated people and staff and to provide recommendations to address them.  It will require the IG to assign each facility a risk score, with higher-risk facilities required to be inspected more often.  Under the bill, the IG must also report its findings and recommendations to Congress and the public, and the BOP must respond to all inspection reports within 60 days with a corrective action plan.

The bill will also establish an Ombudsman within DOJ to investigate issues that adversely affect the health, safety, welfare, or rights of incarcerated people or staff, and who would report dangerous findings directly to the Attorney General and Congress.  The Ombudsman would also be tasked with creating a secure hotline and online form to be made available for family members, friends, and representatives of incarcerated people to submit complaints and inquiries regarding issues within BOP. 

forcedsex161202No doubt Peters will be asked pointed questions about sexual assault of female prisoners. Last week, she issued a statement saying she was “firm in my commitment to work with the BOP team, Department of Justice (DOJ) leadership, the Office of Inspector General (OIG), Congress, and others as I begin to assess and address issues and concerns pertaining to the BOP and the Federal Correctional Institution (FCI) Dublin.”

The former warden and four other FCI Dublin employees face criminal charges for sexually assaulting female inmates.

Peters may as well be asked about the sexual assault scandal at FMC Carswell, the only medical center for women in the BOP system. The Ft Worth Star-Telegram last week reported that a former federal Bureau of Prisons staff member who pleaded guilty to raping two women at a prison in Fort Worth was sentenced to 18 months in prison — half the time one of his victims is serving for drug possession.

Luis Curiel pleaded guilty to two counts of sexual abuse of a ward while he was a lieutenant at Carswell. He was sentenced to concurrent 18 months for each charge. According to court documents, Curiel admitted to meeting three women at separate times near a staff elevator and forcing them into sexual acts.

If the Committee runs short of topics for Director Peters, it may inquire about an Oklahoma City TV report last week that a widow is still seeking answers about her husband’s death at FTC Oklahoma City.

missingcorpse220929Nearly two weeks after Jonathan Patterson Days died suddenly at the FTC, his wife told reporters says she still doesn’t know what happened to him and the facility hasn’t returned his body.

Abbie Alvarado-Patterson said she asked the chaplain, “when do I get his body back? He said, ‘you want his body back?’” She said the BOP chaplain couldn’t give her any additional information about what happened, including a timeline for returning the body

Associated Press, Senate to hold hearing on crisis-plagued federal prisons (August 5, 2022)

Senate Judiciary Committee, Hearing Notice (September 29, 2022)

Associated Press, Senators push new oversight to combat federal prison crises (September 28, 2022)

Press Release, Durbin, Ossoff, Braun Introduce Bipartisan Bill To Overhaul Federal Prison Oversight (September 28, 2022)

News Nation, Experts warn prison staff shortage put lives at risk (September 23, 2022)

KTVU-TV, Prison director vows to ‘change the culture’ at FCI Dublin (September 23, 2022)

Ft Worth Star-Telegram, Fort Worth prison officer gets lighter sentence for assault than victim’s drug sentence (September 20, 2022)

KFOR-TV, ‘This man was loved’: Wife demands answers after husband dies in federal custody (September 21, 2022)

– Thomas L. Root

You’ve Got Mail, Director – Update for September 15, 2022

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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.

‘WE’VE GOT SOME CONCERNS, DIRECTOR’

The Sentencing Project, which recently reported on the large number of people serving sentences of longer than 10 years (52% of BOP inmates have such sentences, about average for the nation’s prison systems), sponsored a letter last Tuesday to BOP Director Colette Peters.

dungeon180627The letter asked her “to bring the Bureau into compliance with federal law and to lead the Bureau toward a more humane future grounded in transparency and accountability.” It cited “inadequate medical care, overcrowding, staff shortages, unsanitary conditions, violence, and abuse” in facilities across the BOP system. It noted that when “COVID-19 first threatened federal prisons, the Bureau could have embraced compassionate release as a tool to reduce the prison population and protect the most vulnerable people in federal prisons. Instead, the Bureau chose to attempt to use solitary confinement and lockdowns to reduce the spread of COVID-19, a practice internationally condemned as torture. Today, COVID-19 restrictions still define life within federal prisons, including 78 level three facilities which remain under intense modifications with minimal access to rehabilitative programming.”

At the end of last week, the BOP reported 477 inmates and 716 staff sick with COVID, spread over 110 facilities.

The letter called on the BOP to “use its power to file motions for compassionate release in extraordinary or compelling circumstances.” As well, it asked the BOP to step up calculating and applying time credits, complaining that agency foot-dragging was “keeping people from their loved ones months after they should have qualified for release to community corrections.” Ironically, this demand came only two days before the BOP issued its memo (see preceding story).

prisoncorruption2310825Finally, the letter cited FCI Dublin, USP Atlanta and USP Thomson as emblematic of BOP “of corruption and abuse and inaction.” The letter said, “We urge you to set a new standard and lead the Bureau towards transparency and accountability. The men and women incarcerated in federal prisons deserve safety, health, compliance with federal law, and to be treated with dignity.”

Not mentioned was FCI Carswell. Last week, Rep. Marc Veasey (D-TX) urged the House Committee on the Judiciary to hold a hearing in North Texas to investigate sexual assaults in federal prisons, in response to a Fort Worth Star-Telegram investigation into systemic sexual abuse and cover-ups at a federal prison in Fort Worth.

The paper reported that its request to interview Director Peters about Carswell had been denied because her schedule “is very full her first few months, but we can re-visit this request in the future.”

busy220915No doubt she’s quite busy, but with all due respect, the issues being complained about are serious and may be system-wide. Being unable to find a few hours to prepare and sit for an interview with a newspaper that is laser-focused on the issue (one which is attracting some Congressional concern) seems somewhat short-sighted, even if only from a public relations angle.

Sentencing Project, How Many People Are Spending Over a Decade in Prison? (September 8, 2022)

Sentencing Project, Formerly Incarcerated People and Advocacy Organizations Urge Reform of US Bureau of Prisons (September 6, 2022)

Ft. Worth Star-Telegram, Congressman calls for federal investigation into ‘horrors’ at Fort Worth women’s prison (September 7, 2022)

– Thomas L. Root

Peters Off to a Rocky Start at BOP – Update for August 11, 2022

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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.

IT ONLY TOOK TWO DAYS FOR THE NEW DIRECTOR TO STEP IN IT…

stepinit220811Reason reported last week, “We last saw outgoing BOP Director Michael Carvajal running down a stairwell on July 26. He was trying to get away from some Associated Press reporters who revealed systemic dysfunction and corruption within the federal prison system—an apt ending for his tenure.”

But it seems that rather than being gone but not forgotten, Mr. Carvajal may be forgotten but not gone.

The AP reported last week that the BOP “is keeping its former director on the payroll as an adviser to his successor, rewarding him with an influential new role after concerns about his leadership — including from staff, inmates, Congress and the Biden administration — hastened his exit from the top job.”

Carvajal will stay on through the end of the month as a senior adviser to new director Peters, BOP spokeswoman Kristie Breshears told AP. “Critics say that retaining Carvajal, even for a few weeks, could slow that progress,” Corrections1 said. “Some people involved in the federal prison system say Carvajal lacks credibility and that the decision to let him stay on sends mixed signals about the direction of the agency at a pivotal time.”

Unbelievable220811“That is unbelievable. Why would we keep an individual that has left this agency in ruins, and who refuses to take ownership of failures of his administration, from staffing to COVID?” said Jose Rojas, a leader in the federal correctional officers’ union. “What a sad state of affairs.”

The announcement did not please Sen. Richard Durbin (D-IL). The chairman of the Senate Judiciary Committee said last Friday he plans to hold yet another oversight hearing on the BOP after The Associated Press reported that the agency is keeping Carvajal on the payroll as an adviser to Peters.

Durbin, who demanded Carvajal be fired last November amid myriad failings, told the AP in a statement he was dismayed by continuing misconduct within the agency and by its unwillingness to completely cut ties with the former director.

Reason, Biden’s New Bureau of Prisons Director Won’t be Able To Run Away From the Agency’s Corruption (August 1, 2022)

Corrections1, US keeping ex-prison chief as top adviser after rocky tenure (August 5, 2022)

Associated Press, Senate to hold hearing on crisis-plagued federal prisons (August 5, 2022)

– Thomas L. Root

Peters Sworn In As Director of ‘Beleaguered’ BOP – Update for August 9, 2022

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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.

PETERS TAKES BOP HELM

Colette S. Peters was sworn in as the Bureau of Prisons 12th director last week, as the Biden administration looks to reform what the Associated Press called a “beleaguered agency.”
petersgarland220810Peters, the former director of the Oregon state prison system, replaced Michael Carvajal, who submitted his resignation in January but stayed in his post until a new director was named. Carvajal announced his retirement amid mounting pressure from Congress, after AP investigations by exposed widespread corruption, misconduct, and sexual abuse of female inmates.

Citing the Benedictine principles of love of neighbor, service, stewardship, justice and peace, Peters said at her investiture that “our mission is twofold: to ensure safe prisons and humane and sound correctional practices so that people reenter society as productive citizens. Our job is not to make good inmates; it is to make good neighbors… I believe in good government, I believe in transparency, and I know we cannot do this work alone. We must come to this work with our arms wide open.”

Peters replaces Carvajal as BOP director only a week after a Senate Permanent Subcommittee on Investigations hearing on BOP mismanagement of USP Atlanta. After being forced by subpoena to appear, Carvajal “refused to accept responsibility for a culture of corruption and misconduct that has plagued his agency for years, angering both Democratic and Republican senators,” AP reported.

Dumpster220718Writing in Forbes, Walter Pavlo said, “Often frustrated by Carvajal, the subcommittee insisted that Carvajal stop talking about the organization chart in the BOP that prevented important information from reaching his desk.” Subcommittee chairman Sen Jon Ossoff (D-GA), told Carvajal that issues plaguing the BOP “are deeper than your leadership personally. This is clearly a diseased bureaucracy, and it speaks ill to our national values and our national spirit that we let this persist year after year and decade after decade. And if this country is going to be real about the principles at the core of our founding, and our highest ideals, then it can change at the Bureau of Prisons… And it has to happen right now. And with your departure and the arrival of a new director. I hope that moment has arrived.”

During her 10 years at Oregon DOC director, Peters built a reputation as a reformer, vowing to reduce the use of solitary confinement and even banning the use of the term “inmate” in favor of “adult in custody.” Like her counterparts in California and North Dakota, Peters visited Norway five years ago, hoping tobringing a gentler model of incarceration back to the United States.

But as The Marshall Project observed last week, “American prisons are still a long way from Europe’s, and even the most innovative corrections leaders here have overseen horrific living conditions in their prisons and abuse from their staff. In picking Peters to run the Bureau of Prisons, the Biden administration has brought local and state debates to a national stage: Can this new generation of prison leaders, who use words like “dignity” and “humanity,” actually make lives better for the men and women under their control?”

Kevin Ring, president of FAMM, said last week that worrying about who runs the BOP r may be focusing on the wrong problem. “I’m less concerned about who the BOP director is than whether we have an independent oversight mechanism in place,” Ring told The Marshall Project. Although the BOP has an inspector general to perform audits, FAMM has been pushing for legislation to create an oversight body with the authorization and funding to do regular site visits and unannounced inspections.

transparancy220810“During Carvajal’s tenure, the BOP has been a black box,” Ring said in a news release last month. “When COVID began spreading in federal prisons and families’ fears were at their greatest, Carvajal and the BOP somehow became less transparent. The BOP’s opaqueness felt like cruelty. We hope the incoming secretary is prepared to make significant changes to a system badly in need of them.”

Sen Richard Durbin (D-IL), chairman of the Judiciary Committee and Carvajal’s harshest Senate critic, said after meeting with Peters last week, “I’m more hopeful than ever that with Director Peters, Attorney General Garland and Deputy Attorney General Monaco have chosen the right leader to clear out the rot and reform BOP.”

Fox News, AG Garland swears in new director of the federal Bureau of Prisons, pushes for reform (August 2, 2022)

Forbes, Bureau Of Prisons Director Carvajal Leaves Behind A Tainted Legacy Void Of Accountability (July 31, 2022)

The Marshall Project, She Tried to ‘Humanize’ Prisons in Oregon. Can She Fix the Federal System? (August 4, 2022)

Reason, Biden’s New Bureau of Prisons Director Won’t be Able To Run Away From the Agency’s Corruption (August 1, 2022)

Shaw Local News, Durbin meets with newly sworn-in director of federal prisons (August 3, 2022)

– Thomas L. Root

Peters Due to be Sworn In This Morning, Honeymoon’s Due to End This Afternoon – Update for August 2, 2022

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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.

change220802Incoming BOP Director Colette Peters will have her choice of fires to put out after today’s swearing in. What she will not have is much of a honeymoon in which to do so.

At last week’s hearings, Sen. Jon Ossoff (D-GA) said that with Carvajal departing, and a new director coming in, change at the Bureau of Prison needs to happen and it needs to happen now.

With a fall COVID surge anticipated, she might want to look first at the BOP’s COVID management. Others certainly are. At last week’s Subcommittee hearings, Sen Alex Padilla (D-CA) said his office has received reports that FCI Mendota had not been following COVID-19 protocols, leading to frequent outbreaks at the facility.

Padilla and Sen. Dianne Feinstein (D-CA) sent the Dept of Justice a letter in April asking about the lack of COVID-19 safety precautions, but did not receive an adequate response. In response to Carvajal’s assurance that the BOP “takes these allegations seriously,” Padilla said, “We sent you a letter saying that we’re hearing that protocols are not being followed. We communicated to you months ago that we understand they aren’t being followed.”

Fourteen other senators last week demanded that the BOP explain its scant use of Covid-19 therapeutics.

The letter is based on press reports that the BOP used just a fraction of the COVID-19 drugs allotted by the federal government. It urges Bureau leadership to revamp its approach toward Covid-19 testing to catch more infections that could benefit from these drugs (which need to be given early in a person’s illness).

Druck“The experience of the pandemic for the federally incarcerated population remains starkly worse than for non-incarcerated individuals,” the letter said. “This discrepancy can only be addressed through affirmative, comprehensive changes from the Bureau of Prisons … to improve the availability of COVID-19 vaccines, testing, and therapeutics. We write to urge you to make those improvements as soon as possible.”

The Dept of Health and Human Services has reported that BOP consistently declines additional COVID-19 drugs. “We have… reached out multiple times to BOP asking them why they do not want their allocations offered by HHS. They consistently say they have enough to meet demand/their demand is low,” DHHS wrote in a May 4 email to Congress. Last week’s letter demands information from the BOP by Sep 9, including data on the turnaround time for Covid-19 tests and the policies governing when incarcerated people are tested.

numbers180327As of yesterday, BOP COVID numbers – which are stunningly untrustworthy most of the time – reported 479 inmates and 509 staff with COVID, with COVID in 115 facilities (the most since March 1st). The total number of COVID tests performed on inmates fluctuates inexplicably but suggests no testing being done since January 25th. Peters might want to start by requiring BOP COVID stats to be meaningful.

Florida Phoenix, ‘Stunning, long-term failures’ found in probe of Atlanta penitentiary (July 26, 2022)

Stat, Senators demand answers about federal prisons’ scant use of Covid therapeutics (July 26, 2022)

Letter to Michael Carvajal from Sen Benjamin Cardin (July 25, 2022)

– Thomas L. Root

Outgoing Director Carvajal Beaten Up by Gang of Senators – Update for August 1, 2022

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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.

FORMER BOP DIRECTOR GETS SENATORIAL KICK IN THE PANTS ON HIS WAY OUT THE DOOR

Widespread drug abuse, substandard health care, violence and horrific sanitary conditions are rampant at USP Atlanta, according to a Senate Permanent Investigations Subcommittee investigation revealed last week.

riot170727The dysfunction at USP Atlanta is so notorious within the BOP that “its culture of indifference and mismanagement is derisively known among bureau employees as ‘the Atlanta way’,” the New York Times reported last week. Witnesses at the Subcommittee hearing last week “describe[ed] dozens of violent episodes — and the systematic effort to downplay and cover up the crisis — over the past few years,” The Times reported.

The prison’s conditions reflect wider problems in the BOP’s network of 122 facilities housing about 158,000 inmates, The Times said. The system has suffered from chronic overcrowding, staffing shortages, corruption, sexual violence and a culture that often encourages senior officials to minimize the extent of the problems.

The Associated Press reported that outgoing BOP Director Michael Carvajal, who testified under a Subcommittee subpoena, “faced a bipartisan onslaught Tuesday as he refused to accept responsibility for a culture of corruption and misconduct that has plagued his agency for years.”

schultz220801Carvajal argued that “he had been shielded from problems by his underlings — even though he’d been copied on emails, and some of the troubles were detailed in reports generated by the agency’s headquarters.” He blamed the size and structure of the BOP for his ignorance on issues such as inmate suicides, sexual abuse, and the free flow of drugs, weapons and other contraband that has roiled some of the BOP’s 122 facilities. His attempts to deflect responsibility for his leadership failings sat well with neither Subcommittee chairman Sen Jon Ossoff (D-GA) nor its ranking member, Sen Ron Johnson (R-WI).

Colette S. Peters, the longtime head of Oregon prisons, assumes the BOP director’s post on Tuesday. Carvajal finally will get the retirement he announced seven months ago, but not before the Subcommittee made it clear that it was fed up with his blandishments.

“Inmates hanging themselves in federal prisons, addicted to and high on drugs that flow into the facilities virtually openly,” Ossoff told Carvajal, “and as they hang and suffocate in the custody of the US government, there’s no urgent response from members of the staff, year after year after year… It’s a disgrace. And for the answer to be ‘other people deal with that. I got the report. I don’t remember’. It’s completely unacceptable.”

“It’s almost willful ignorance, and that’s what I find disturbing,” Johnson said. “‘Don’t want to know what’s happening below me. Don’t want to hear about rapes. Don’t want to hear about suicides’.”

rapeclub220801In one of the hearing’s most heated moments, Ossoff pressed Carvajal on rampant sexual abuse at FCI Dublin, a federal women’s prison in California’s Bay Area known to staff and inmates as the “rape club.” Among the Dublin employees charged criminally so far is the prison’s former warden.

“Is the Bureau of Prisons able to keep female detainees safe from sexual abuse by staff?” Ossoff asked. “Yes or no?”

“Yes, we are,” Carvajal replied. “In those cases when things happen, we hold people appropriately accountable.”

“You are the director at a time when one of your prisons is known to staff and inmates as a ’rape club,” Ossoff shot back. Carvajal had no response.

Rebecca Shepard, a staff attorney for the Federal Defender Program Inc., said USP Atlanta subjects inmates to inhumane and substandard conditions:

I have seen clients routinely locked down and allowed out of their cells for extremely limited periods of time, such as only 15 to 30 minutes, three to four times a week, or only an hour each day. And these lockdowns persist for months. Clients are treated as though they are in solitary confinement, not because of their behavior, but because of their misfortune and being placed at USP Atlanta.

The problems were “stunning failures of federal prison administration,” Ossoff said. But despite “unequivocal internal reports of abuse and misconduct, the situation continued to deteriorate.”

sexualassault211014Attorney General Merrick Garland appears to be moving more decisively, especially on the issue of sexual violence against female inmates and staff members. On July 14, Deputy Attorney General Lisa Monaco announced a task force to establish a policy aimed at “rooting out and preventing sexual misconduct” by prison employees over the next 90 days. Ms. Monaco said she was also instructing frontline prosecutors to make all misconduct cases at facilities a top priority, The New York Times said.

Last week, Forbes reported that Peters will take over an agency in disarray:

Relations between management and labor is at an all-time low, the agency is failing at implementing the First Step Act and COVID-19 continues to ravage its institutions. A recent survey by Partnership for Public Service, which ranks best places to work within the US government, ranked the BOP near last among 432 federal agencies. It ranked dead last in Effective Leadership category. This comes at a time when the BOP is trying to recruit new workers to make up for many veteran BOP employees who are leaving the agency.

Dumpster220718Hyperbole?  Well, just last week:

•      An independent arbitrator found the management at the Bureau of Prisons Federal Correctional Center Yazoo City in Mississippi guilty of violating the civil rights of the American Federation of Government Employees’ (AFGE) local President Cyndee Price at the facility, as well as retaliating against her in violation of the union contract.

     In 2020, Price was the first Black woman elected to serve as the local union president at any Federal Correctional Complex in the nation. But after that, the arbitrator ruled, prison wardens prohibited Price from using 100% official time to perform her union work, although previous Local President Vincent Kirksey had been granted 100% official time for the past seven years, and male local presidents at other BOP facilities also are on 100% official time.

     Bankston ordered the agency to pay Price overtime pay for the 1,080 hours of union work she performed on her own time that should have been performed during duty hours under the approved contract and past practice. Price was also awarded $300,000 in compensatory damages, as well as attorney’s fees and expenses.

•    A former BOP employee from FMC Lexington was sentenced last Friday to 80 months in federal prison after pleading guilty to committing five counts of sexual abuse of a ward. The employee, Hosea Lee, was a correctional officer serving as a drug treatment specialist. Between August and December 2019, Lee engaged in sexual acts with four separate female inmates who were in his drug classes.

•    A Mississippi woman, Tarshuana Thomas, was arrested Monday after being indicted by a federal grand jury for alleged fraud involving federal COVID-19 Paycheck Protection Program loans. The US Attorney said Thomas, who worked as a CO at FCC Yazoo City at the time of the alleged fraud, devised a scheme to obtain PPP funds by filing fraudulent loan applications.

The Atlanta Voice, Senator Ossoff grills Federal prison officials over deplorable conditions at Atlanta Penitentiary (July 28, 2022)

The New York Times, Prison Personnel Describe Horrific Conditions, and Cover-Up, at Atlanta Prison (July 26, 2022)

Forbes, Outgoing Federal Bureau Of Prisons Director Carvajal Subpoenaed By Senate Subcommittee (Jul 19)

WRDW-TV, Ossoff leads hearing on troubled Georgia federal prison (July 26, 2022)

WJTV, Arbitrator finds Yazoo County federal prison guilty of violating civil rights (July 26, 2022)

Dept of Justice, Former BOP Employee Sentenced to 80 Months in Prison for Sexual Abuse of a Ward (July 29, 2022)

Mageenews.com, Former BOP Correctional Officer Charged with COVID-Relief Fraud (July 29, 2022)

– Thomas L. Root

The King is Dead, Long Live the Queen – Update for July 18, 2022

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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.

NEW ‘REFORM’ SHERIFF COMES TO BOP

Colette S. Peters, the longtime director of the Oregon Department of Corrections, has been tapped to lead what The New York Times last week called “the chronically mismanaged and understaffed federal Bureau of Prisons.”

Dumpster220718The appointment comes after a 5-month search to replace current BOP Director Michael Carvajal. Carvajal announced his retirement in January under pressure from Senate Democrats – especially Judiciary Committee Chairman Richard Durbin (D-IL) – who questioned his management.

The Times said Peters “was considered the favored candidate for a job seen as one of the Justice Department’s most demanding and thankless assignments.” Kevin Ring, president of FAMM, was blunter:  “Colette Peters is walking into a dumpster fire. From sexual violence and medical neglect to understaffing and years-long lockdowns, the BOP’s leadership has allowed a humanitarian crisis to develop on its watch. Families with incarcerated loved ones have been begging for change.”

The Associated Press reported that “Peters, who championed steeply reducing [Oregon’s] inmate population in the last decade, will inherit a federal agency plagued by myriad scandals. Her hiring comes about seven months after Director Michael Carvajal submitted his resignation amid mounting pressure from Congress after investigations by The Associated Press exposed widespread corruption and misconduct in the agency.”

Those issues include health and safety problems, physical and sexual abuse, corruption and turnover in the top management ranks. Staffing issues, exacerbated by the pandemic, have resulted in a huge shortage of prison guards and health personnel, according to an AP investigation last year, which uncovered a wide array of other shortcomings.

bureaucracy180122When she takes office on Aug 2, Peters will become only the second director in BOP history with no prior experience in the federal prison system. Deputy Attorney General Lisa Monaco, who led the search to replace Carvajal, said DOJ had been looking for someone focused on reforming an agency that has had cultural issues for decades.

Durbin had been especially critical of Carvajal, who started his BOP career as a correctional officer 30 years ago, accusing him of failing to properly implement the First Step Act. Last winter, he called repeatedly for Carvajal’s firing, describing the BOP as rife with abuse and corruption.

The accuracy of that criticism was underscored this week by a Forbes report that 42 months after First Step became law, the BOP is only now beginning staff training on how to apply earned-time credits for inmates, with training set to start next month. Forbes said, “While the training on FSA is a great idea, it also serves as verification that the BOP is way behind on implementing the most important aspect of the law, which is to allow prisoners to earn time off of their sentences. After training, it will take months to coordinate local training at the institution level. Until then, expect the chaos to continue and questions to go unanswered.”

Shane Fausey, national president of the Council of Prison Locals, which represents BOP employees, welcomed the selection of Peters. “We believe that the lessons [Peters] learned while leading the Oregon Department of Corrections can be used to effectively improve the BOP,” he told Government Executive. “Additionally, it is extremely important that officer and employee safety are prioritized in all decisions.”

Rep Fred Keller (R-PA), chair of the House BOP Reform Caucus, said, “I look forward to maintaining an active and productive relationship with Director Peters in her new capacity on BOP priorities such as improving the agency’s operations, increasing correctional officer staffing levels, and ensuring the safety of staff and inmates.”

Peters has faced criticism during her stint as ODOC chief. She was accused in a lawsuit of placing underqualified friends in high-ranking positions within the ODOC and creating openings for them by firing other employees or creating a hostile environment causing other employees to quit.

Bobbin Singh, the executive director of the Oregon Justice Resource Center, last week expressed concern about Peters’s appointment given his experience with her. “This appointment is an insult to all those incarcerated in Oregon who are fighting for their civil rights and dignity,” Singh told the online publication Law Dork last Tuesday.

Less than a month ago, his organization sent a report to Oregon lawmakers detailing ongoing problems at ODOC. In the letter to lawmakers accompanying the report, Singh wrote, “Despite a cascade of evidence revealing serious issues within the department, ODOC continues to put forward a misleading narrative that either ignores the issues entirely, profoundly sanitizes the facts, or wrongly shifts blame and responsibility away from itself.”

goodbad220718Law Dork reported, “Another person familiar with Peters’s work helped explain how Singh could have such criticisms and DOJ could nonetheless want Peters for the job: ‘She both runs a bad system and is one of the handful of best DOC heads in the country. She has made some concrete improvements to the system. But the system is still really bad. It says so much about American prisons that ODOC can both be very bad — and be one of the better ones in the country.’”

NY Times, Justice Department Taps Oregon Official to Run Troubled Bureau of Prisons (July 11, 2022)

Associated Press, Justice Dept taps reforming outsider to run federal prisons (July 12, 2022)

Forbes, 42 Months After The First Step Act Was Signed Into Law, The Bureau Of Prisons Starts Training Staff (July 15, 2022)

Govt Executive, A New Federal Prisons Director Has Been Named, and Union Officials and Lawmakers Are Optimistic She Will Bring Positive Reforms (July 12, 2022)

Law Dork, New Prisons Head Comes From Oregon, With Baggage (Jul y 13, 2022)

FAMM, FAMM releases statement on new Bureau of Prisons Director (Jul 12)

– Thomas L. Root