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“It’s a Miracle!” People Say, as BOP Cures 2,000 Inmates in One Day – Update for February 8, 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.

MIRABILE DICTU

Miracle200513That is, “speaking of wonders…”

Medicine has not seen such an achievement in two millenia: between last Wednesday and Thursday, the BOP cured almost 1,968 inmates of COVID. COVID numbers, totaling 7,787 sick prisoners on January 28 had dropped to 5,581 as of last night.

Of course, if this were a real medical miracle, you’d expect the number of institutions with COVID to fall, and staff cases to decline as well. No such luck. Staff with COVID increase 152 to 2,057, and the number of institutions with outbreaks total 131. As of last weekend, Oakdale II has 397 cases, Yazoo City USP 277, FCC Lompoc has 223, and Oakdale I has 214. Twelve more locations have more than 100 sick, and 14 more have over 50. A full 86 prisons have 10 or more inmate COVID cases.

While the BOP does report daily infection tallies for each of its facilities, experts say those counts likely miss a large number of infections. Stat said the BOP does not report granular enough testing data to calculate so-called test positivity rates, a measure often used in public health to estimate what percentage of a population likely has Covid-19, given not every person in a community is typically tested at one time.

numbers180327What’s more, the BOP’s declaring inmates “recovered” from COVID has by now become a sad joke. Of the 53 BOP inmates who have died from COVID since March 1 of last year, the BOP had previously declared 53% to be “recovered.” Epidemiologist Homer Venters, M.D., has cautioned against the very questionable BOP practice:

People that tested positive, let’s say three, four weeks ago, may be considered recovered or not part of active cases…When you kind of wave a wand over people and say they’re recovered, my experience going into jails and prisons is many of them are not actually recovered. Many of them have new shortness of breath, chest pain, ringing in the ears, headaches. Other very serious symptoms.

The problem is systemic. “On his first day in office, President Biden promised to order the BOP to reevaluate its Covid-19 protocols and release additional data on the spread of the virus in prisons. But that specific order never came,”  Stat said last week. “And now, as Covid-19 is spiking in multiple federal prisons around the country, spurred by the Omicron variant and still-substandard infection control, advocates say that the BOP’s Covid-19 protocols are as broken as ever.”

Stat said that at Danbury, “it’s not just Omicron driving the surge. There were 234 new cases in a population of roughly 1,000 people during the month of January, according to data compiled by a team at the University of Iowa, but there’s no frequent testing and those in quarantine aren’t being monitored for worsening symptoms.”

inhumanecovidinmate220124And at Alderson, Stat quoted an attorney for inmates at FPC Alderson as saying the situation there is worse, although there’s even less information accessible. Available data suggest that Alderson experienced serious spikes in new Covid-19 cases during both late December and late January. The lawyer said there are likely more women with COVID in the facility than the available data show, because the facility is not testing widely.

The Fort Worth Star-Telegram was blunt: “Two years into the pandemic, federal prisons — including one in Fort Worth — still do not have COVID-19 under control. Executive staff at federal prisons are failing to follow the Bureau of Prisons’ COVID-19 response plan, according to a federal report. FMC Carswell, a women’s medical prison in Fort Worth, does not have a facility-specific plan, employee union representatives said… ‘It’s been pure chaos,” [one inmate,] who is incarcerated at the prison, said. “Carswell is still without a plan.”

Jennifer Howard, president of the union representing more than 400 FMC Carswell employees, said executive staff leaves union representatives out of the loop on COVID-19 discussions and safety plans. During the most recent meeting between union representatives and Carswell executive staff, Howard said, an executive staff member told reps, “I wish we could tell you we had a plan right now.”

Stat, Despite Biden’s big promises and a far better understanding of the virus, Covid-19 is still raging through the nation’s prisons (February 2, 2022)

Fort Worth Star-Telegram, Cases spike at Fort Worth prison; whistleblower complaint says top staff have no COVID plan (January 31, 2022)

KXAS-TV, Seagoville Federal Prison COVID-Cases Fall Drastically, Expert Warns Against New Data as Family Mourns Loss (August 14, 2020)

– Thomas L. Root

… And Venter Vents – Update for January 25, 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.

HOUSE SUBCOMMITTEE WITNESSES SAVAGE BOP’S COVID RESPONSE

venters220125Witnesses blasted BOP healthcare, CARES Act and compassionate release response, and the PATTERN score at a House of Representatives Subcommittee on Crime, Terrorism and Homeland Security hearing on what Rep. Jerry Nadler (D-NY) called “BOP’s troubling response to the COVID-19 pandemic and its inability to protect inmates and staff adequately.”

Nadler, who is chairman of the full House Committee on the Judiciary, said the BOP has a “duty to ensure basic protections for those in our custody” and “to make sufficient use of the authority granted to it under the CARES Act to place certain prisoners at home confinement earlier than previously permitted by statute…”

Epidemiologist Homer Venters, who has inspected some 40 prisons since the pandemic began, testified that “my greatest area of concern is that pre-existing deficiencies in the health services provided to people in BOP custody which contributed to the spread and lethality of COVID-19 remain unaddressed… My investigations have real revealed a disturbing lack of access to care when a new medical problem is encountered.”

Additionally, he argued that “there’s a compelling and unrealized rationale for release of high-risk patients who pose minimal public safety risks. This approach is even more important now to consider during the omicron outbreaks because of the tremendous lack of staffing inside facilities.”

death200330Venters faulted the lack of any independent review and assessment of reported COVID-19 deaths “including those that occurred in private facilities,” a number the BOP has been careful to erase from its count since contracts with those facilities lapsed. He argued that “the lack of independent assessment in how [inmate COVID] deaths are reviewed and more broadly the lack of meaningful oversight by a health organization” is a fundamental problem.

“Every other sector of health care in the United States has independent and professional health organizations reviewing the quality of care,” Venters told the Subcommittee, “but in the BOP and other carceral spaces we leave those crucial assessments to law enforcement to review its own provision of health care… The BOP is left to make its own assessments about the quality and scope of his health care and only sporadic investigations by the Inspector General of the Dept of Justice provide alternative viewpoints. This is wholly insufficient and leaves incarcerated people at a systemic disadvantage because the organizations and structures that measure and promote health for the rest of the nation for the rest of us are excluded from the care people receive in the BOP.”

University of Iowa law professor Allison Guernsey echoed the problems with the BOP’s self-reporting of inmate COVID numbers. “There are serious questions about the veracity of the BOP’s infection and death data. Not only do these questions cast doubt on the handling of the pandemic but they have real-world impact on the adjudication of compassionate release motions.”

She noted that the BOP has delayed reporting some COVID deaths for as much as a year, and that even now, Freedom of Information Act data she obtained from the BOP show five inmate deaths that the BOP has never publicly acknowledged. What’s more, she said, BOP numbers “don’t include anyone who died in a privately managed facility with a federal contract [which she reported totaled 17] and… it excludes people who were granted compassionate release just in time to die free.” Furthermore, she testified, “the Bureau of Prisons has admitted that its cumulative infection rate doesn’t include anyone who caught COVID and was then released from prison.”

With Guernsey’s additional numbers, the BOP’s inmate COVID death total is at least 301 inmates.

funwithnumbers170511Guernsey observed that “the accuracy of the data matters” because “courts rely on it routinely in granting compassionate release, and if a judge misjudges the COVID risk based on inaccurate data, people that we know are medically vulnerable will be left in prison to die.” She asked the Subcommittee to take steps to “require the BOP to report accurate and verifiable data. We should require them to do this for deaths and for infections, and we should require the BOP to comply with the mandates already articulated in the First Step Act by requiring them to report to this Committee and Congress what they are doing with respect to compassionate release procedures.”

[Editor’s aside: If the BOP accountants who diddle daily with the agency’s COVID numbers were in private industry, they’d have done the perp walk by now.]

Subcommittee on Crime, Terrorism, and Homeland Security, Hearings: The First Step Act, The Pandemic, and Compassionate Release: What Are the Next Steps for the Federal Bureau of Prisons? (Jan 21)

– Thomas L. Root

Good, Bad… But Not Indifferent – Update for May 27, 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.

EITHER GOOD OR BAD

Maybe you’ve noticed our good-and-bad theme this week. Here are some shorts:

thumbsup210526Good: The DC Circuit last week joined seven other circuits in holding that Guideline 1B1.13 does not limit compassionate release motions when those motions are brought by prisoners instead of the BOP.

The Circuit just joins seven other circuits since last September to so hold.  Only the 11th Circuit disagrees.

United States v. Long, Case No 20-3064, 2021 U.S. App. LEXIS 14682 (DC Cir., May 18, 2021)

thumbsdown210526Bad: The two Federal Bureau of Prisons Correctional Officerss who were supposed to be watching Jeffrey Epstein, later charged for lying to investigators and phonying up records to hide the fact they were cruising the Web instead, last week entered guilty pleas in the U.S. District Court for the Southern District of New York under deferred prosecution deals that will cost them 100 hours of community service but no prison time.

Forbes, Federal Prison Guards Admit To Filing False Records During Jeffrey Epstein’s Suicide (May 21, 2021)

thumbsup210526Good: Senators Amy Klobuchar (D-Minnesota and John Cornyn (R-Texas), and House Reps. Karen Bass (D-California) and Guy Reschenthaler (R-Pennsylvania) introduced the One Stop Shop Community Reentry Program Act last week, a bill that would set up reentry centers to help coordinate access to job training, medical and mental health services, and financial counseling. The centers would also help individuals land jobs, gain job-skill training, obtain driver’s licenses, fill out college and student loan applications and receive financial counseling.

The bill passed the House in the last session of Congress, but never came to a vote in the Senate.

NPR, Congress Wants To Set Up One-Stop Shops To Help Ex-Inmates Stay Out Of Prison (May 20, 2021)

thumbsdown210526Bad:  Dr. Homer Venters, an epidemiologist tasked by a federal court with inspecting FCC Lompoc reported last week that the facility has “an alarmingly low vaccination acceptance rate among the inmate population,” due to prison staff neglecting to address inmates’ “very valid and predictable concerns” about the effects the vaccine might have on their underlying health conditions.

Rather than address inmate fears, Venters said, prison staff dismissively told the inmates to either “take the vaccine or sign a refusal form.” He reported to the Court that “many of the people who reported refusing the vaccine told me they were willing to take it but simply had questions about their own health status.”

“The approach of BOP Lompoc not only fails to engage with patients; it has a paradoxical effect of creating a pool of extremely high-risk unvaccinated patients,” he wrote. “In other detention settings I have worked in, a COVID-19 refusal by a high-risk patient would result in a prompt session with a physician or mid-level provider because the consequences of infection are so grave.”

Santa Barbara Independent, Doctor ‘Extremely Concerned’ About Low Vaccination Rate Among Lompoc Prisoners (May 20)

– Thomas L. Root

Lawsuits and Voodoo Accounting: Last Week in the BOP COVID Wars – Update for April 1, 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.

INMATE COVID CLASS ACTION SUITS GO 1-1

habeas_corpusThe class-action suit brought by FCI Waseca inmates challenging that institution’s inadequate response to COVID-19 sputtered to an end two weeks ago, as the U.S. District Court in Minneapolis ruled the women could not “assert a constitutional claim relating to the conditions of confinement” in a 28 USC § 2241 habeas petition.” A circuit split exists on this issue, but the 8th Circuit is on the wrong side of the split, at least insofar as the Waseca inmates are concerned.

The court ruled that if the FCI Waseca petitioner wanted to seek any remedy based on conditions of confinement, they had to bring a civil rights complaint, which would be subject to the Prison Litigation Reform Act. That Act, of course, requires that the inmates exhaust administrative remedies first, a fancy term meaning that they would have to work their way through the Bureau of Prisons byzantine remedy process, presenting their complaints to three different levels inside the BOP (and having those claims rejected, as is the BOP’s habit). The quickest way through the administrative remedy process takes about six months or so, which is a lifetime when inmates are dropping like flies from COVID.

The difference between the circuits is clear in the pending FCI Lompoc suit. Last week, the U.S. District Court in Los Angeles ordered FCC Lompoc to let Dr. Homer Venters, a court-appointed prison epidemiology expert, back into the institution within the next month for a second inspection, with a deadline of May 12 to file his report with the court. In so ruling, the court rejected the BOP’s argument that Venters – who has been unstintingly critical of the BOP’s response to the coronavirus epidemic – is not a neutral expert.

The Lompoc class action habeas corpus action is set for a hearing on summary judgment motions on June 15th.

numbers180327The BOP’s COVID numbers continued to fall last week. As of Friday, the BOP reported 394 inmate and 1,265 staff COVID cases systemwide. It’s still everywhere, with active cases in 119 BOP facilities. With 72% of the inmate population tested, the positivity rate is still over 43%.

The BOP reported that as of the end of last week, 15.3% of inmates and 45.4% of staff have been vaccinated, while at the same time claiming in other stats that it has delivered over 99,000 doses into arms.

The numbers don’t add up, but paying too much attention to BOP COVID numbers simply confuses. For instance, last week, The Marshall Project, which has reported weekly on COVID in prisons for months, noted that “while new infections in prisons have dropped in recent months from their highest peaks in mid-December, this data no longer includes new cases from the Federal Bureau of Prisons, which has had more prisoners infected than any other system. In early March, the Bureau’s totals began to drop because they removed cases of anyone who was released, a spokesman said. As a result, we cannot accurately determine new infections in federal prisons.”

unperson210401It’s pretty slick. Up until February 24, the BOP reported the total number of inmates who had tested positive for COVID-19, a running number that has only increased over time. But since February 24, the BOP has been changing the number daily by adding new cases while subtracting inmates who had tested positive in the past but who were no longer in custody. This accounting legerdemain has let the BOP understate the number of inmate cases by 1,115 through the end of March, which has changed the positivity rate by a point, from 43.77% (had those inmates remained on the rolls) to 42.75% without them.

Inmates become uninmates. How Orwellian…

And sometimes, the BOP doesn’t get to count COVID cases as active at all. Last week, an inmate at USP Florence died of COVID, but never tested positive for the disease in life. Only after his death did pathology determine he had died of undiagnosed COVID. No one knows for sure how many inmate COVID cases were simply never accounted for.

The BOP has not yet reported on how many inmates being offered the vaccine have not received it. However, a Kaiser Health News report last week, noting that 38% of Danbury inmates offered the vaccine rejected it, suggested that inmate reluctance might be because inmates believe that institutions have done a poor job of pandemic: “Inmates pointed to numerous COVID deaths they considered preventable, staffing shortages and guards who don’t wear masks. While corrections officials defended their response to COVID, [one inmate] said he’s apprehensive about how the department handles ‘most everything here recently,’ which colors how he thinks about the vaccines.”

Malcom v. Starr, Case No 20-2503, 2021 U.S. Dist. LEXIS 45387 (D. Minn. March 11, 2021)

Order, ECF 191 in Torres v Milusnic, Case No CV 20-4450 (C.D. Cal. March 22, 2020)

Mankato Free Press, ACLU lawsuit against Waseca prison dismissed (March 23, 2021)

Lompoc Record, Trial date approved in Lompoc prison COVID-19 class-action lawsuit; second inspection authorized (March 27, 2021)

The Marshall Project, A State-by-State Look at Coronavirus in Prisons (March 26, 2021)

BOP, Inmate Death at USP Florence (March 24, 2021)

Kaiser Health News, Inmate Distrust of Prison Healthcare Fuels Distrust of COVID Vaccines (March 25, 2021)

– Thomas L. Root

ACLU Brings Second FCC Butner Suit Over COVID – Update for November 2, 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.

ACLU CLAIMS BOP COVID TESTING STRATEGY IS ‘INCOHERENT’

A coalition of civil rights groups led by the American Civil Liberties Union filed a class-action lawsuit against the Federal Bureau of Prisons last week over its handling of COVID-19 outbreaks at FCC Butner. The suit seeks an injunction to protect Butner prisoners, especially “vulnerable people… who, because of their medical conditions and/or advanced age, are at higher risk of severe injury or death from COVID-19.”

suit201102The lawsuit alleges that the BOP has “tested too few people at Butner, too infrequently, and too late,” and fails “to separate people who tested positive from those who tested negative for several days after receiving the test results.” The suit claims screening for symptoms has also been sporadic and ineffectual. The claims include allegations of inadequate cleaning and disinfecting procedures to adequately protect the men housed at Butner. As well, the allegations take aim at BOP management of CARES Act home confinement and compassionate release:

Despite direction from the US Attorney General months ago to expeditiously consider medically vulnerable people for home confinement or other release, Defendants continue to oppose motions for compassionate release made by medically vulnerable people, and they have failed to order furloughs or transfers to home confinement with sufficient speed and in sufficient numbers.

FCC Butner, located about 25 miles north of Raleigh, North Carolina, holds nearly 4,000 male inmates, with five facilities: a medical center, a minimum-security camp, a low-security prison and two medium-security facilities.

The civil rights groups filed suit against the BOP last spring, alleging that officials have failed to protect the Butner population. In early June, a federal judge sided with the BOP, agreeing it had “made reasonable efforts” to control the virus.

In another suit, Lompoc prison officials were ordered by a Los Angeles federal judge three weeks ago to expedite the evaluation of more than 120 inmates deemed eligible for home confinement due to their risks of COVID-19, although only 44 have been released since July. Five inmates brought the federal class-action lawsuit last May, seeking alternative confinement after a COVID outbreak at Lompoc infected more than 1,000 inmates and staff. At least four inmates died as a result of the outbreak.

The October 8 order directed the BOP to confirm that all 129 eligible inmates were released to home confinement.

expert160905The BOP had argued there is no specified timeline to release inmates to home confinement and that such release requires a three-judge panel, according to the response included in the Oct. 8 filing. Meanwhile, last Friday the agency blasted a court-ordered report by Dr. Homer Venters, countering with its own expert who concluded that “FCC Lompoc has acted reasonably and diligently in dealing with the COVID-19 pandemic based on the CDC guidance and BOP guidance applicable at the time, including the comprehensive BOP COVID-19 Pandemic Response Plan.” The expert complained that Dr. Venters “consistently bases his critical conclusions on unverified statements that were made to him by unidentified inmates, despite the harsh judicial criticism that he recently received in an Eastern District of New York COVID-19 case for following that unreliable methodology.”

The BOP’s COVID numbers – 1,766 sick inmates as of last Friday – are down 7% from a week ago. But ominously, the number of sick staff continues to climb, hitting 896 on Friday. A month ago, there were 724 sick staff. Nationwide, 75% of all prison and jail staff cases since March have recovered. But only 60% of BOP staff cases have done so, suggesting that BOP staff COVID cases are increasing at a much faster rate than the rest of the country. This is critical, because the staff is the primary means by which COVID is being brought into facilities.

Circumstances surrounding the latest inmate COVID-19 death, Joe McDuffie at El Reno, are concerning. Joe tested negative for COVID on Oct 13. After that, according to the BOP, “he received daily symptom checks and did not express any symptoms associated with COVID-19. On Friday, October 23, 2020, institution staff found Mr. McDuffie unresponsive.” He died later that day.

The BOP says 46% of the inmate population has been tested for COVID. One out of four of those 69,500 tests has been positive.

Hallinan v. Scarantino, Case No 5:20-ct-3333 (ED NC, filed Oct 26, 2020)

The Appeal, Coronavirus in Jails and Prisons (October 28, 2020)

BOP, Inmate Death at El Reno (October 29, 2020)

Santa Maria Times, Lompoc prison officials release 44 inmates to home confinement; more than 120 deemed eligible (October 30, 2020)

Respondents’ Statement, Torres v. Milusnic, Case No 20cv4450 (CD California, October 30, 2020)

– Thomas L. Root