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 America Pekin , Illinois
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
In US 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 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
