BOP COVID-19 Response Under Scrutiny by Federal Judges

Happy Memorial Day! Thanks to All Veterans For Your Honorable Service and Sacrifice

by Derek Gilna

            Today we pause to remember our nation's veterans past and present, and to honor our fallen warriors.  We are forever in your debt and will do our best to rebuild this country to fulfill the promise of Freedom made to us by the Founding Fathers.

            Those Founding Fathers would not recognize our country, with its bloated carceral bureaucracy that imprisons 20% of the world's total prisoners, while having only 5% of the world's population. However, there are clear signs the public may be demanding an end to this incarceration fixation and demanding yet more reform.

             Ending mass incarceration is perhaps the only issue on which both political parties agree, as the nation refocuses on China as the new bogeyman, instead of the mythical "super predator" of the eighties and nineties.  The highly-efficient surveillance-and-confidential-informant apparatus, empowered by a compliant, vote-seeking Congress, became quite efficient in converting low-level users (often via non-existent "ghost dope")' into "kingpins," and judges competed to see who could sound tougher in scolding the accused forced to plead guilty at a rate that made a mockery of the right to a jury trial guaranteed by the Bill of Rights. Prosecutors advanced their political careers by doing everything to frustrate Brady discovery requests, and made accomplices of many defense counsel who offered little resistance and  failed to protect their clients.

            It is impossible to overstate the impact of the First Step Act (FSA), which provided new avenues for sentence relief. For the first time in decades, prisoners are able to directly petition their sentencing judge to grant them compassionate release, not only for being terminally ill, but because of a nationwide pandemic the prison system pretends it is controlling, while deliberately understating rates of infection and death.

             Like nervous little children who have been called out by adults for misbehavior, federal prison officials in at least two prisons have been ordered to present daily reports on what the status of testing, infection, and releases are in their institutions.  In several   prison medical staff has ceded total control of health care and virus testing to either the CDC,  military. or National Guard. DOJ. The prison "healthcare" system is mocked by the media. "Nothing to See Here" has been replaced with, "Please Help Us!"

            Perhaps even more importantly, FSA has forced DOJ to institute an education program that when fully implemented will release many thousands more prisoners than Compassionate Releases ever could and will provide job training to help prevent recidivism. Congress also recently  introduced the Revitalization Act to compel DOJ to place prisoners closer to home, making mandatory what FSA made optional ( and therefore ignorable). The U.S. Supreme Court accepted for consideration Borden v. US, 19-5410 (6th Cir.), which asks whether the "use of force" clause in ACCA encompasses crimes with a mens rea of mere recklessness. The 6th Circuit in US v. Smith, 19-5281, cited FSA in reversing a district court denial of a 3582(c) motion that directly attacked the 20 year mandatory minimum, a stunning development.

            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