BOP Continues to Botch Barr-Ordered At-Risk Prisoner Covid-19 Releases

Courts Now Demanding Answers, Releasing Prisoners, Citing "Cruel and Unusual"

Conditions

by Derek Gilna

            Whether it was intentional or not, a federal judge in Ohio just issued a "shot across the bow" of DOJ and the federal prison system by terming confinement in the face of Covid-19 "cruel and unusual punishment," which should trigger a spate of  future 1983 civil rights actions. In the meantime, judges have also shot down the DOJ "Exhaustion of Remedies" defense in the fact of the obvious emergency health hazards. DOJ persists in refusing to test prisoners even in hard-hit facilities, deliberately under-counting the number of those infected with the incurable virus.

            In contrast, state prison authorities found that in their prisons, THOUSANDS have tested positive, with 96% of those NOT showing symptoms. These people then spread the disease to the most vulnerable and immuno-compromised, and a high percentage of these people succumb. It appears that DOJ is filing objections to all prisoners not released by DOJ, in effect thumbing their collective notices at the hard-to-find and  silent AG, while ignoring the real threat to the aged and chronically ill.

            So we have gone from the  4-3 Memo, to the "List," to  "50%," to....nothing. No guidance from Central Office, but plenty of mainstream exposes. Continuing transfers of the infected from other facilities, which just happened over the weekend at Thomson in western Illinois. In small prison towns across America, like Pekin, Illinois, this lurking threat is front-page news.

            To summarize,  underlying medical conditions are the main criteria judges are examining, not length of sentence, "shots," and even cases of minor "violence," (and not the broad definition used by DOJ to deny RDAP credit). However, make sure that you have a release plan, including a place to live. Let's let the judges make the final call, not DOJ. Judge Gwin's  recent ruling in Wilson v. Williams, 20-cv-794, was a good start.

            In US v Hope, 20-1784, (3rd Cir.  4-21-20), the court is considering a district court judge's order of immediate release of immigration detainees threatened by Covid-19.  The  7th Circuit reversed and remanded the denial of First Step relief, holding that "18 USC 3582(c)(1)(B), rather than (c)(2) is the correct (vehicle)...for relief, and (plaintiff) was eligible for relief under the plain language of the Act." US v. Holloway, 19-1035, (7th Cir. 4-24-20).          In US v Sawicz, 8-cr-287 (USDC, ED of NY), the court granted a SO Covid-19  based home confinement.

             In US v Akande, 18-6833 (4th Cir. 4-20-20), the court reversed the denial of a 2255 petition, finding that the entry of an open plea counseled by defense counsel robbed defendant of his obvious desire to appeal a suppression denial. Finally, in US v Johnson, 17-60852, (5th Cir. 4-21-20), the court vacated a sentence and remanded for further proceedings where the dc judge relied on factual allegations in a confidential sentencing recommendation not in the PR and not disclosed to Johnson, in violation of FRCP 32.

            Have a good week, keep the faith, and let not your heart be troubled.

Federal Legal Center, Inc., Derek A. Gilna, JD, Director

113 McHenry Rd., #173, Buffalo Grove, IL   60089, (Also in Indiana) dgilna1948@yahoo.com, and Google Blogspot, "Derek Gilna's Criminal Justice Blog."

BOP Covid-19 Cases Continue Steep Climb as Rest of Country Looks to Reopen

Attorney General Falls Silent as Covid-19 Threatens Not only Prisoners, but Neighboring Communities

by Derek Gilna

            As the Attorney General falls silent, and local prison officials complain a lack of guidance and preparation from DOJ, Covid-19 continues to spread in prisons and jails across the country, defying the "leveling off" of new cases and deaths that has started in several parts of the country.   There is evidence in Chicago that the over 300 cases and numerous deaths in Cook County Jail has contributed to the disproportionate number of deaths in the Black community there. The MCC Chicago has seen  numerous cases and deaths among both prisoners and staff. There is  also real fear in the rural counties in which most federal prisons are located that the increasing number of prison cases will overwhelm their limited health resources. Unfortunately, this will be the "next wave" of the disease, as the DOJ graph of new cases and deaths continues its steep climb.

            The deteriorating situation has provokes a flood of litigation in sentencing courts across the company, as judges sit in judgment on maters of life and death, while facing ritualistic opposition from DOJ attorneys. Many judges have granted relief, and more cases are awaiting decisions. Although some judges have upheld the 30-day requirement for Compassionate Release filings, most have not, citing the emergency nature of the pandemic. Nonetheless, it is wise to put the prison on notice of your request, in whatever fashion you can, even only via email.  With no access to printers, and with some prison staff discouraging applications, do what you can to memorialize your request by emailing people outside the prison citing date and time of your request.  There is NO need to exhaust administrative remedies, or wait for a denial to get into court. .

            Another common question we get is whether "shots" for minor matters, or the presence of SO or violence in your background automatically disqualifies you.    It does not. It may disqualify you from release pursuant to the prison "list" but the judges have the final say on whether your factual background  and rehabilitative activities support your request, and are well aware of the arbitrariness of most prison discipline.

            In the circuits, in US v. Rosa, 17-2003 (7th Cir. 4-17-20) the court vacated and remanded the denial of a 2255 petition, finding that the district court sentenced defendant without giving any  3553 reasons. In US v. Chaparro, 18-2513, (7th Cir. 4-13-20), the court in a SO matter vacated the conviction based upon a violation of the pretrial confidentiality rule used for impeachment, and ordered a new trial.  Finally, in US v. Allen, 19-3606, (6th Cir. 2-12-20), the court remanded a FSA denial, where Allen had argued that the statutory minimum penalty for his drug offense had been lowered, and that post-sentencing conduct MUST be considered in considering the request.

            In these challenging times, never give up, and let not your heart be troubled.

Federal Legal Center, Inc, Derek A. Gilna, JD, Director

113 McHenry Rd., #173, Buffalo Grove, IL   60089

Also in Indiana. dgilna1948@yahoo.com;

Google Blogspot, "Derek Gilna's Criminal Justice Blog."

Bureau of Prisons Covid-19 Release Policies Quietly Expanding

DOJ Scrambles to Spin Covid-19 Cases and Deaths but Quietly Expands Release Criteria

by Derek Gilna

            Each day of the last week has brought dizzying changes in federal prison policy relating to Covid-19 release criteria, driven not only by the Attorney General, but also public opinion, and lawsuits from both individual prisoners and federal prison guard unions. Local, rural communities adjacent to prisons rightly fear that their limited health care facilities will be overwhelmed by the disease's spread.  DOJ still has not done sufficient testing and fails to properly protect prisoners and prison employees from the deadly virus, ineptly "quarantining" sick with healthy prisoners, and "spinning" and "minimizing" the crisis. DOJ's systemic Covid failures are front-page news everywhere.

            Those "non-violent," non SO, "non-violent" prisoners over 60 who have served roughly half of their sentences, and who have CDC-defined risk factors are being prioritized, but the only certainty in this statement is that it will change, based upon other factors that REALLY drive DOJ policy: fear of bad publicity and ACLU and prisoner lawsuits. Close to 1000 have already been released to home confinement, including one who had an "escape." Prison medical treatment is so substandard that every member of prison staff should be held liable if you are denied release, and are then infected, as a violation of policy, not to mention the 8th Amendment. More on that next week.

            What if you are not on the "list?" Start the clock by filing a request for Compassionate Release, citing "extraordinary and compelling" reasons, including Covid-19, especially if you meet the aforementioned criteria. That request can be in writing or via email;   keep a copy.   If you are rejected, or the warden fails to respond in 30 days, First Step permits you to file WITHOUT exhausting administrative remedies, although never a bad idea to continue filing them.  Start working on a release plan, and gather your medical and programming evidence, as a matter of routine, for possible future use. By all

means, put prison staff on notice that your physical health is threatened by their inaction.

            Despite the pandemic pandemonium, federal courts are still all put and running, although oral arguments have been put on hold. In USDC, WD of Louisiana at Lake Charles, a class action by prisoners at Oakdale progresses before Judge Doughty, alleging DOJ misconduct, forcing DOJ to defend its practices. Livas, et al., v Myers, 20-cv-422.  

            In US v Smith, 19-1615, (1st Cir. 4-8-20), the court reversed a denial of FSA relief, after finding eligibility for a sentence reduction of a 841(a)(1), (b)(1)(C) charge,  because his offense was a "covered offense" for FSA purposes, citing supporting cases from most appellate circuits, and that the result was supported by Congress's intent.

In US v Oliver, 17-15565, (11th Cir. 4-8-20), the court reversed, stating that making terroristic threats is not a predicate violent felony under ACCA.

            In this week following Easter and Passover, let not your heart be troubled.

Federal Legal Center, Inc., Derek A. Gilna, JD, Director

113 McHenry Rd. #173, Buffalo Grove, IL (And also Indiana)

dgilna1948@yahoo.con.  Google blogspot: Derek Gilna Criminal Justice Blog

Covid-19 Federal Prison News Update

Public, Congressional Reaction to DOJ Prison Mismanaged Pandemic Response Spurs Recent Bureau of Prisons Release Drive

By Derek Gilna

           When you take away a person's ability to protect and themselves from disease, and then fail to treat them,  you own the results.   Fear, which I would argue drives most human actions, has taken over DOJ, and exposed its failures to the public at large. Although there is no doubt that Attorney General's recent memos suggesting that vulnerable prisoners will be released is a good start, we all know that the flawed classification system and shoddy and unprofessional medical record keeping leave it poorly positioned to accurately identify those individuals.

          Another serious issue is the LACK OF TESTING for Covid-19 in the institutions. By way of comparison, at Cook County, Illinois jail, which currently holds in excess of 3000 detainees, 295 prisoners have tested positive.  Although fortunately most federal facilities do not have the daily public contact of a county jail, guards and outside vendors do come and go. Clearly DOJ is not EXTENSIVELY testing for one of two reasons: (1) it lacks sufficient testing kits to do so, or (2) it is afraid of what the results of testing will show. Unacceptable.

         As of Monday morning, and these are the (minimum) confirmed figures: Danbury, CN had over 20; Oakdale, La. 75; Lompoc, 19; Yazoo City, Ms., 18; Butner, NC., 12.  DOJ said Sunday that 139 prisoners and workers have tested positive, and 7 had died.   The real figures are probably much higher. DOJ has come up with its own version of "Schindler's List," identifying 10-20 in each institution who should be released either because of age, illness, or nearing release.   It is a belated attempt to show the public and Congress that they are doing "something." Don't be fooled.   File your request for Compassionate release in any fashion possible, NOW, and seek judicial action if that request is denied.

         The U.S. Supreme Court (now working remotely), held in Davis v. U.S., 589 US_ (2020), that in a 8 U. S. C. §§922(g)(1), 924(a)(2), and possessing drugs with the intent to distribute them, 21 U. S. C. §§841(a)(1), (b)(1)(C), case, that " the Fifth Circuit’s outlier practice of refusing to review certain unpreserved factual arguments (where a timely objection was not made in district court) (was) plain error. We agree with Davis, and we vacate the judgment of the Fifth Circuit." 

        In the circuits, in US v. Phea, 17-50671, (3-31-20), the Fifth Circuit ruled in a appeal of a denied 2255 petition that defense counsel "rendered ineffective assistance by failing to object to an obvious constructive amendment," and reversed. In a SO matter, where there were allegations of violations of 18 USC Section 1591(a) and 1952(a)(3), and the court's instructions to the jury plainly reworded the indictment, the court granted relief.

       We will continue to give you the FACTS needed to debunk rumors and falsehoods.    Stay safe, and let not your heart be troubled.

Federal Legal Center, Inc., Derek A Gilna, JD, Director,

113 McHenry Rd.   #173, Buffalo Grove, IL   60089

(Also in Indiana) dgilna1948@yahoo.com

847-878-0160