BOP Continues to Bungle COVID-19 Response: Courts Releases Drop BOP Population 1000 a week

SCOTUS in Recess, Congress Approaches Adjournment,  Covid-19 Crisis Continues

by Derek Gilna

            Thousands of personal crisis are unfolding in federal prisons as DOJ continues to fumble its response to COVID-19.  At places like FCI Seagoville, there 61 active cases among inmates, and 882 cases as of Tuesday, about 48% of the population. Carswell's cases are approaching 200 and growing rapidly at a facility filled with the medically frail.

Staff are also getting sick, and when tempers grow frayed in places like FCI Gilmer, prisoners are also made to suffer.  Mass testing is the only answer to containing the crisis, but it has only happened in a few areas, since DOJ appears to fear negative publicity from the high number of positives it would certainly reveal.

            To file a Compassionate Release petition in federal court, you MUST file for it with the warden, and either be rejected or wait 30 days. Note that some wardens refuse to give denials in writing, perhaps to slow down the court filing process, and in that instance you must confirm via email the date you submitted the request, and when you received the denial.  This is important.   You DO NOT need to go through the BP process.

            The various district court clerk offices are struggling to keep up with the crush of filings, leading to record delays in getting new cases and other filings posted on PACER.  Despite these delays, the federal prison population is still dropping, and now stands at 159,000. Prisoner population is declining at roughly 1000 persons per week.

            If you want to stay up to date on what is happening nationally with Covid subscribe to Prison Legal News. They currently have a special going for prisoners who have never been PLN subscribers before. $1 gets you a six issue trial subscription. They will take 2 stamps as payment too. An annual subscription is $30 for 12 issues. Their address is: Prison Legal News, P.O. Box 1151, Lake Worth, FL 33460.

            Senator Rand Paul, no fan of the federal government or its "justice" system, argued this week that " Congress could make significant progress by repealing conspiracy laws that result in easier convictions and cruel prison sentences that either do not fit the crime or apply when no crime has been committed at all."

            In the circuits, US v Steward, 19-60624, (5th Cir. 7-9-20), reversed and remanded denial of FSA FAIR sentence relief, although it did not require plenary resentencing.

In an interesting white collar case, in US v. Obagi, et al, the  USCOA for the 9th Circuit reversed convictions for federal mortgage fraud, and remanded for further proceedings, in a case in which the government disclosed after the close of evidence information impeaching a government witness in violation of Brady v. Maryland. How many other cases are out there like this one?   18-50170, consol. (9th Cir. 7-17-20).

            How can we assist you today? Remember, regardless of your past, you deserve a future.   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

Blogging at Derek Gilna's Criminal Justice Blog

BOP Virus Spread Continues: Prisoners Now Part of Virus Experiment at FCI Forrest City Arkansas

New Study Finds Prisoners Over Five Times More Likely to Get COVID-19

by Derek Gilna

            A new study by Johns Hopkins researchers found that, "The Number of U.S. prison residents who tested positive of Coivd-19 was 5.5 times higher than the general population." This will come as no surprise to those at Butner, where 25 prisoners have already died, as has at least one staff member. System wide, seven thousand federal prisoners have contracted the virus, and 700 infected staff members have carried the virus  home, passing it to the general population. The federal prison system, beset by decades of mismanagement and inadequate medical care,  appears powerless to stop the spread.

            FCI Forrest City, which has seen similar levels of infection, has been made into a special testing facility, with prisoners as the subjects of the study.   Unlike most other compounds, the CDC at Forrest City has tested virtually everyone, and erected large tents on the recreation yard to allegedly segregate positive cases from those that were not positive. Although DOJ states that CDC is solely there to provide care and treatment, it is not, and instead is separating prisoners into different buildings, giving them varying levels of care, and then observing, which one participant called being akin to "human guinea pigs."

            Prison Legal News (PLN) also disclosed on July 1 that a secret document "raises risk factors, security levels of prisoners." PLN said that the document is apparently being "used to evaluate the security levels of prisoners, leaving some who qualified for release to home confinement stuck in prison during the ...pandemic with little explanation of how they were evaluated."

            In the 10th Circuit in US v Cantu, 19-6043, 7-6-20, the court held that Cantu was entitled to relief on his claim that he was not an ACCA, despite the fact that he had not preserved the claim in the district court, finding "plain error." Reversed and remanded. In US v Stewart, 19-60624, (5th Cir. 7-9-20), the court held that FSA does allow defendants convicted of certain crack cocaine offense to be resentenced as if the reduced statutory minimum penalties implemented by the Fair Sentencing Act of 2010 were in place," and granted relief, but plenary resentencing was not required.   Reversed and remanded.

            In US v Denson, 19-11696, (11th Cir. 6-24-20), the court reduced a crack conviction brought under FSA from 262 to 188 months, but concurred with the 5th and 8th Circuits that a full (plenary) resentencing was not required. The 4th Circuit in Braswell v Smith, 952 F.3rd 441, (4th Cir. 3-4-20) expanded the Savings Clause of 2255(e) to include later retroactivity of a new rule not in effect at the time of sentencing, finding that a wrongful mandatory minimum was a fundamental defect, requiring relief.

            Let us know what we can do to assist you in preparing and filing  your Compassionate Release petitions, and your 2255's alleging inadequate representation of counsel. 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,

Blogging as "Derek Gilna's Criminal Justice Blog."

BOP Shortcomings in COVID-19 Crisis Becoming Even More Evident

COVID-19 Continues Its March Through Federal Prisons, as DOJ Efforts Fall Short

by Derek Gilna

            COVID-19 cases continue to multiply in the federal prison system, while the number of cases nationally level off.   Unfortunately, most of the country's increase is coming in areas not previously hard-hit, and especially in the South and Southwest. Outbreaks continue in Oakdale, a previous flash-point, which is being locked down again, but have also hit women's facilities hard, including Coleman, Pekin, Carswell, and Waseca, among others. Shortages of cleaning supplies, transfer of prisoners, unscreened staff and supplier visits to facilities from outside, and systemic management failure in providing even basic health care, mean this problem will exist for months.. A recent ACLU study says additional prison deaths in jails and prisons could top 100,000.  

            In the Presidential race, former prosecutor Kamala Harris is  mentioned as Biden's top VP choice, which is bad news for prisoners. Harris' actions as California AG were problematic, and her selection and election would be a setback for sentence reform. However, there are signs that the current administration will take some decisive action  pre-election in the area or sentence reform to build upon First Step, perhaps even support for S 4034, "a bill to expand eligibility for and provide judicial review for the Elderly Home Detention Pilot Program, provide for compassionate release based on COVID-19."

            The question is whether the current (long-overdue) focus on police misconduct will translate into some positive action on sentence reform. My crystal ball is a little cloudy, but my guess is that the answer will eventually be, "yes." One unlikely champion of reform is the Business Roundtable, a group of 193 companies who are lobbying for a nationwide registry of rogue officers, many of whom are hired by other departments after being fired from another for repeated acts of misconduct.

            In the circuits, the 7th vacated and remanded a conviction for unlawfully possessing a firearm in violation of 18 USC 922(g)(9), citing Rehaif, and the court agreed that the definition of "misdemeanor crime of domestic violence" is quite complicated," and permitted the withdrawal of a guilty plea. Also in the 7th, in Day v US, 18-2398, the court agreed that it constituted prejudicial  inadequate representation of counsel for private counsel to reject a plea offer of 51 to 623 months, and instead went to trial and received a sentence of 92 months. 6-24-20.

             US v Triggs, 19-1704, 7-1-20. In the 6th, the court ruled that good conduct may be considered in a 3582 action under the FSA. US v Allen, 956 F.3d 355 (2020).

In US v Woodson, 19-6976, 6-24-20, the 4th Circuit overturned a denial of relief under FSA, for a reduction of sentence based upon cocaine offense prior to 2010, where 841(b)(1)(C) applied.

            If you have not yet filed your petition for compassionate release, and feel that your current health status or that of a family member at home is susceptible to COVID-19, please contact us for a review.  We also would be happy to review your case for possible relief based upon inadequate representation of counsel or a sentence affected by FSA. Let not your heart be troubled.

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

113 McHenry Rd., #173, Buffalo Grove, IL   60089 (Also in Indiana)

dgilna1948@yahoo.com, Blogging at "Derek Gilna's Criminal Justice Blog."