BOP COVID-19 Problems Persist: Virus Counts Continue to Rise as Lack of Medical Care Becomes More Evident

 

Continuing Pandemic Spotlights Federal Prisons Officer and Medical Staff Shortages

 

by Derek Gilna

 

            One of its most horrifying moments in the movie, "Titanic," is when the ship's orchestra, called on deck to dutifully perform while the doomed ship continues to sink, suddenly falls silent as it is engulfed by the cold north Atlantic waters. So it is at many federal prison facilities, where gaping personnel shortages  at  most institutions has put prisoners, staff, and people in surrounding communities at rising risk. Meanwhile, the Director and his staff continue to dutifully perform the "nothing to see here" music as the  relentless virus continues to degrade  poorly-treated prisoners' health nationwide.

            USP Thomson has only 67% of its staff compliment, according to the local union president, who complains that staff is not provided with testing resources unless it obtains one privately, apparently as a matter of agency policy. "Who is going to man the prison if everyone tests positive," one infected guard said. That same guard, along with other staff,  freely circulates in  his community, guaranteeing the virus' spread. Lack of physicians, as at Milan, threatens the care of all medically-vulnerable prisoners and those who have "recovered" from the virus, and at Forrest City serious medical problems are not addressed. Lack of extensive prisoner testing means DOJ continues to fly blind.

            As of last week, the agency website listed  11,953 prisoners and 773 staff as COVID-19 positive, a number which is certainly lower than actual numbers, and continues to grow. A Johns Hopkins researcher said that public defenders say that the problem is worse in federal prisons than in any other correctional environment. Even some prisons like Lewisburg, where the virus had been absent, had new cases recently as did the Petersburg and Pollack facilities. Waseca and Aliceville have bus-transfer cases.

            The US Senate has noticed, and S. 4034, which expands judicial review for Elderly Home Detention Pilot program for Compassionate release, is getting more attention. Senator Marco Rubio asked Barr to note possible Coleman PREA violations.

            In the circuits, in US v. Carnell, 19-2007, (7th Cir. 8-28-20), the court remanded for resentencing where "the government failed to meet its burden...proving...ice methamphetamine." In US v Griffin, 19-14287, the appeals court vacated and remanded a district court order that misconstrued a petition for relief as coming under 404(b) of FSA, whereas it should have done so under 18 U.S.C. 3582(c)(a)(A) and 603 of FSA.

            In US v Medley, 18-4789, (4th Cir. 8-21-20) the court cited Gary in finding Rehaif plain-error, and vacated and remanded for further proceedings. Also in the 4th, in US v. Green, 19-4348, (8-28-20), the court again granted Rehaif relief, citing Medley. The 6th Circuit considered a denial of FSA relief in US v Williams, 19-5803, (8-26-20), and vacated/remanded, holding that "the district court's resentencing decision...is subject to review for substantive and procedural reasonableness,..(and we now) consider the record both for the initial sentence and the modified one."

            Do you have a serious medical issue that makes you susceptible to COVID-19, or feel that you have received inadequate representation of counsel? Please contact us.      Be not afraid and do not  let your heart be troubled.

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

113 McHenry, #173, Buffalo Grove, IL  (and Indiana)

dgilna1948@yahoo.com; blogging at "Derek Gilna's Criminal Justice Blog."

Bureau of Prisons Continues to Purposely Under-test Both Prisoners and Staff, asking "If All of the Guards Test Positive, Who will Watch the Prisoners?"

 DOJ Policy to Limit Tests of Both Prisoners and Staff Puts Everyone at Risk

 

By Derek Gilna

 

            DOJ’s ”nothing to see here” response to COVID-19 is merely an extension of the long-term policy of the most publicity-adverse agency in all of government: “If we don’t test everyone, we can limit our number of ‘positives,‘” and make it look like we are actually accomplishing something." This policy puts not only prisoners and staff but also surrounding communities, at very serious risk. Also, does anyone know of ONE warden approval of CR while the pandemic has raged? Have yet to see my first one.

            Meanwhile, DOJ prison system policy continues to attempt to keep website counts artificially low by counting people as “recovered” who are still suffering symptoms, meaning that since you didn’t die from the virus, you have validated the policy of doing little or nothing to stop the spread. See: Elkton, Lompoc, Carswell, and Forrest City (and others) where the number of very sick people (counted  by DOJ as “recovered”) continues to grow, especially among guards (Gilmer, Pekin, Sandstone). However, despite the clear undercount, double digit increases have occurred in Waseca, Greenville, Pekin, Coleman (where the CDC now runs the show like they did at Forrest City, complete with tents), and Terre Haute. The San Diego facility has over 50 positives. Never mentioned is the fact that people with chronic issues are no longer receiving ANY, let alone basic care of chronic conditions. Some like Ashland, have no doctor.

            Has the wide-spread rioting (Downtown Chicago stores are covered in plywood)  hurt the cause of prisoner reform? No. In meetings the past week, I was told that it is still a top priority of at least one major political party meeting in Charlotte this week, although reform was not a hot topic at the Dem conclave the past week, especially with the former California AG and current vice presidential candidate, who fought hard to keep non violent offenders locked up.

            In the circuits, in US v Bostic, 19-50591, (5^th Cir. 8-18-20),the court vacated and remanded an inflated sentence of 235 months when the guidelines called for 21 to 27 months, for the court’s failure to “(justify) such a sentence, or to impose a lesser one.” on US v Cook, 18-1343, (7^th Cir. 8-18-20) the court reversed a 922(g)(3) conviction, on Rehaif grounds, where the indictment did NOT allege that defendant  “knew…that he belonged to the relevant category of persons barred from possessing a firearm.” Also in the 7^th, in US v Corner, 19-3517, (7-24-20), in a violation case, the court failed to assess FSA eligibility, and vacated and remanded for further proceedings.

            For those of you still contemplating Compassionate Release or CARES Act petition, please be sure to have all of your supporting medical information available for our inspection to see if you might qualify. Also, if you feel that you received inadequate representation of counsel, and are not more than one year out from your appeal, we want to hear from you. One again, we look forward to your updates, and contact me if you wish to take advantage of Prison Legal News generous (almost free) six-month trial subscription.

Be not afraid and let not your heart be troubled.

Federal Legal Center, Inc., 113 McHenry Rd., #173

Buffalo Grove, ILL. 60089, (And Indiana)

dgilna1948@yahoo.com; Blogging as “Derek Gilna’s Criminal Justice Blog.”

Expert Current Administration to make a "Bold Move" On Justice Reform Before Election

 

Rumblings from DC May Foreshadow "October Surprise;" Dems Also Promise Reform

 

by Derek Gilna

 

            In four years the current administration, despite fierce resistance from career justice bureaucrats, the media, and prison industrial complex supporters, has accomplished  the greatest reduction in the federal prison population in living memory. For all of the talk about "law and order," this is an indisputable fact. The OTHER party's platform promises further reform, but will it deliver with "Crime Bill Joe" and  a former local and state prosecutor on the ticket? As prisoner counts drop, the New York Times has criticized the President for "choreographing an all-time low in white-collar prosecutions," which are often  overblown, publicity-gathering, civil disputes.

              I expect some form of "October Surprise" to shore up the President's image as champion of the common man, and a further housecleaning of the inefficient and corrupt federal law enforcement bureaucracy as Russiagate prosecutions ramp up.  

            Meanwhile, nationwide, there was another 10 percent increase in COVID-19 cases behind bars as total tally nears 100,000. Coronavirus infections continue to spread at a rapid pace in federal and state prisons across the country. There are over 18,000 cases in Texas, nearly 13,000 in Florida, and roughly the same number in federal prisons. At least 847 prisoners have died of the virus, an increase of five percent over last week.

            The pace of compassionate release and CARES petition filings continues to accelerate, and dozens of prison now face COVID-19 related civil rights lawsuits. The DOJ Inspector General has warned that not enough was being done to utilize home detention as fully allowed by the AG and the law. As noted by a highly-placed union official for federal correctional workers, "we were never included in any of the (planning)...and this is why the agency is in chaos." Who suffers as a result? Not the bureaucrats. The guards have filed numerous OSHA complaints which are still pending.

             Carswell, Elkton, Lompoc, Oakdale, and Seagoville, all continue to be hard hit, as the virus found its way to Ashland, Waseca,  Gilmer, and Pekin, among others, and is beginning to spread in Minnesota. None of these institutions are equipped to handle the

extensive after-care requirements for those who have technically "recovered."

            In the circuits, the 1st Circuit reversed and remanded a conspiracy to commit, Hobbs Act robbery case used to find a violation of a 924(c)(1)(A) case. US v Lara, Williams (consol.) 17-1957, (1st Cir. 8-12-20). In US v  Henry, 18-15251, (11th Cir. 8-7-20), the court vacated a conviction where the dc failed to follow USS Guideline Section 5G1.3(b)(1), requiring an adjustment of a defendant's for time served on a related sentence if certain requirements are satisfied. In  US v Orr, the mess that is the Central District of Illinois continues to unravel, as the 7th Circuit vacated a conviction after the trial judge communicated improperly  (ex parte) with prosecutors. 19-1938, (8-10-20).

            If you feel that you received inadequate representation of counsel we would be pleased to review your matter. Be not afraid, and let not your heart be troubled.

 

Federal Legal Center, Inc, Derek A. Gilna, JD, Director,113 McHenry Rd.   #173, Buffalo Grove, IL   60089 (And in Indiana), dgilna1948@yahoo.com,

For your family and friends:   "Derek Gilna's Criminal Justice Blog.

 

BOP Guards' Unions Say Bosses Have "No Plan" to Fight COVID-19, File Suit Over Dangerous Working Conditions

 

Federal Prison System Now Sued By Its Own Employees for COVID-19 Negligence

 

by Derek Gilna

 

            There is no surer way for any institution to lose legitimacy than to deny responsibility for its own incompetence. If the federal prison system was a private corporation, it would have declared bankruptcy, faced liquidation, its employees fired, and its name taken off its buildings. And there is no more telling indictment of an institution's moral bankruptcy than when its own employees sue them for putting them in danger, accusing them of lack of leadership and direction.

            Has the staff seemed especially "radiant" these days? Perhaps it's because at certain institutions, employees reporting for work are bathed in high-dose ultra-violet  light, which some studies have shown causes cancer, and lawsuits have followed.

            Meanwhile,  COVID-19 cases inside both state and federal prisons rise another 10 percent in the past week. At least 86,639 prisoners across the country have now tested positive for the Coronavirus. Three out of four prisoners have tested positive for COVID-19 at FCI Seagoville, a federal prison near Dallas. Eighty percent are positive at Coleman women's facility. In facilities like FCI Florence, there are often no medical staff at night, or for pill line.

            A surge of cases at USP Marion alarms medically vulnerable prisoners and their families. FCI Allenwood, Lewisburg (35 positives) , and Waseca have seen increased cases. Carswell and Forrest City (Named for a former Confederate General) continue to be hard-hit.  No wonder that the number of virus-driven judicial releases to home confinement have continued across the country, while wardens continue to deny releases-and reality.  Yet, DOJ has approved a restart of prisoner transfers, despite the absence of adequate cleaning supplies everywhere.

            In the circuits, in US v Howard, 19-1005, (7th Cir. 8-3-20), the court in a SO case reversed and remanded a 2251(a) conviction: "the government's interpretation of 2251(a) stretches the statute beyond the natural reading of its terms." In US v Rivera-Berrios, 19-1467, (1st Cir. 8-3-20), the court reversed and remanded a 922(o)1 conviction where the judge abused his discretion in sentencing one year above the guideline range.

            In re Robert Gene Will, II,  17-20604, (5th Cir. 8-5-20) the COA approved the filing of a Third Successive 2255 that convincingly argued a Brady violation, "claiming that the prosecution unconstitutionally suppressed evidence under Brady and that he was actually innocent." SCOTUS refused to uphold "a preliminary injunction requiring the Orange County, California sheriff to implement certain safety measure to protect their inmates during the ..pandemic," arguing that it went beyond CDC guidelines. In US v. Hudson, 19-2075, we previously noted that the court appears to encourage FSA filings regarding the question of "covered offenses," something to seriously consider.

            In the face of inefficiency, ignorance, and incompetence, we must all rely on not only our own resources, but a higher power, putting aside fear in favor of positive action.

Let not your heart be troubled.

 

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

113 McHenry Rd.   #173, Buffalo Grove, Il   60089 (And Indiana)

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

BOP COVID-19 Nightmare Continues as Infection Spreads to New Prisons

Memo to Federal Prison System: Incompetence, Mismanagement, and Deception On Public Display.

by Derek Gilna

            Things are so bad in the federal prison system that loved ones are taking matters into their own hands. In Beaumont, Texas, mom, wives, and girlfriends of the confined and at risk demonstrated at the prison gates, demanding accountability and action on behalf of their love ones at risk from COVID-19. KDFM, Channel 6 ran a long segment about Beaumont, and a broom with a sign attached neatly summarized the message:  "Sweep Out Negligence,." and another sign said,  "Prisoners Lives Matter."

            According to WDTV in West Virginia,  one staff member at Hazelton and one at McDowell tested positive "in the last month,"  The same station reported in July that,       "One inmate at FCI Hazelton tested positive for the virus, while a staff member at USP Hazelton also contracted COVID-19, according to...the (DOJ)." WV cases are widespread and spiked in July, and women's' prisons at  Bryan, Tallahassee and Greenwood have also been affected. Unfortunately, in Forrest City, prisoners who had the virus, and then recovered, apparently have become re-infected, which CDC feared, and DOJ resistance to mass-testing means that asymptomatic prisoners can be spreaders.                                      The persistent pattern of negligent  medical under-staffing, ignoring sick call requests, and lack of cleaning supplies, as noted by a federal judge in NY, (and at FCI Gilmer,)  means that this scourge will probably continue in federal prisons for many months, and continue to fuel rises in cases in surrounding towns. In Texas, communities are blaming prisons for introducing the virus into their heretofore minimally-affected populations. The DOJ Inspector General issued a scathing report on the crisis at Lompoc, and their observations unfortunately could apply to most federal facilities.                        The Biden-Sanders Unity Task Force platform has recommended more changes to mandatory minimums, and a revision of federal prosecutorial guidelines to avoid coerced plea deals or overcharging. However, his choice of VP will indicate if the campaign is truly serious about supporting more Congressional action on reform issues.

            In the circuits, in US v Lozado, 19-1222, (10th Cir. 7-28-20), the court reversed and remanded for resentencing the denial of a 2255 that alleged that three 924e qualifying priors were negated by Johnson. In US v Rendon, 19-2515, (8th Cir. 7-27-20), the court vacated and remanded an Amendment 782 action where the PSI drug quantity estimate was too high. In US v. Hudson, (7th Cir. 7-22-20) the court ruled that FSA permitted a court to reduce a "non-covered" sentence when it includes both "covered and uncovered offenses," and may do so even if FSA "did not alter the Guidelines range for a defendant's covered offense.

            We are available to review your sentence for possible 2255 petitions where inadequate representation of counsel has occurred, and have been successful in our Compassionate Release filings, and would like to add you to our growing "out" list.

Let not your heart be troubled.

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

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

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