Barrett Nominated to Supreme Court; BOP Counts Hold Steady, but Waseca Has over 200 Confirmed Cases

 

DOJ COVID-19 Disinformation Campaign; Amy Coney Barrett SCOTUS Nominee

 

by Derek Gilna

 

            Definitely a week with positive developments. As I predicted, Amy Coney Barrett of the 7th Circuit was nominated to the Supreme Court, and will be confirmed. A conservative in the Scalia mode, she has remained skeptical of the government's arguments when it tries to put or keep people in prison, but has sometimes rejected  credible claims by defendants and prisoners. Like Justice Gorsuch, she will not reflexively side with the government in criminal cases.

            According to the DOJ website,  57,698 tests have been completed, and 15,000 have been positive. However, credible reports from individual prisons suggest a much higher rate of infection. Minnesota continues to be hard hit, with over 200 positives at Waseca (and still climbing) , and almost 100 at Sandstone. FMC Rochester with 15, and FPC Duluth, site of a presidential fly-in rally Wednesday night, trail  with five. Forrest City continues has 75, Terre Haute has five dorms locked down, and  Carswell continues to suffer.

            Ponder these comments from DOJ Attorney General Robert Barr: "In recent years, the Justice Department has sometimes acted more like a trade association for federal prosecutors than the administrator of a fair system of justice based on clear and sensible legal rules.  In case after case, [DOJ has] advanced and defended hyper-aggressive extensions of the criminal law.  This is wrong and [DOJ] must stop doing it...." Progress has been made in DOJ, but  the federal prison system continues to fight scrutiny and  reform. Whey  FSA time credits go into effect the end of the year, there will be more public scrutiny of by far the worst federal agency.

            The Second Circuit provided an excellent FSA opinion whose reasoning and arguments should prove significant in all circuits.  US v. Zullo, No. 19-3218-CR (2d Cir. Sept. 25, 2020). " We must today decide whether the First Step Act empowered district courts evaluating...compassionate release to consider any extraordinary and compelling reason for release that a defendant might raise, or whether courts remain bound by U.S. Sentencing Guidelines Manual (“Guidelines” or “U.S.S.G.”) § 1B1.13 Application Note 1(D), which makes the Bureau of Prisons the sole arbiter of whether most reasons qualify as extraordinary and compelling."

            "Application Note 1(D) does not apply to compassionate release motions brought directly to the court by a defendant under the First Step Act, we vacate and remand the district court’s contrary decision....the First Step Act freed district courts to consider the full slate of extraordinary and compelling reasons that an imprisoned person might bring before them in motions for compassionate release.  Neither Application Note 1(D), nor anything else in the now-outdated version of Guideline § 1B1.13, limits the district court’s discretion...." This improves the odds for successful appeal of CRs.

            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."

 

Waseca Joins Carswell, Rochester, Terre Haute, and other BOP Facilities as COVID-Hot Spots; Prisoner Transfers Spark Virus Spread

 

Justice Ginsberg's Death Pushes SCOTUS Vacancy into Election Campaign:   What it Means

 

by Derek Gilna

 

            The death of celebrated Justice Ginsberg has made the future direction of the Supreme Court (SCOTUS) the top issue in the November election. Although the focus is on the President's pick, ( which will be 7th Circuit Appeals Court Judge Amy C.  Barrett), the real pressure is on Senators up for re-election. However, the impact on prisoner cases will be minimal regardless of the pick, since SCOTUS already has a conservative majority, all very capable of rendering positive decisions in the prisoner-rights area.

.           Ginsberg has best known for writing intelligent dissents (for the losing side), but the future of the court depends upon people like Justice Gorsuch, who believe that ALL people are entitled to constitutional protection. As the U.S. Sentencing Commission has ceased to be a force for reform, our focus turns to Congress to pass Second Step , and  also  to a President who hates the entrenched federal DOJ bureaucracy, and who has already done more for prisoners in 3 years than the previous president in 8.

            Attorney General Barr made news this week by attacking career prosecutors, whom he attacked as "headhunters," more interested in politics than justice.  In doing so, he reflects the public's view that the federal  prison system, like quarantines. is inhumane and unhealthy.  The  155,483 in custody  suffer virus surges in places like FMC Rochester, FCI Waseca, "house of horror" FMC Carswell, and Terre Haute, which all continue to struggle with basic "best health practices," and instead resort to a quiet information blackout to block prisoners communications with the outside world, in another, "Nothing to see here" moment. Both political parties should make a pledge for an independent oversight "ombudsman" to end this health nightmare.

              Has no one at DOJ or  the U.S Marshal's service read the CDC reports, which now states that EVERYONE should be tested if exposed to a sick person? Are all of these prisoner transfers worth the risk to prisoners and staff given the lack of medical care?    In the circuits,  the 7th  came up with two favorable decisions.In US v Bethany, 19-1754, the court remanded a FSA 401 petition, in light of US v.  Paladino, 401 F.3d 471,484 (2005). In US v Uriarte, 19-2092, (7th Cir. 9-15-20), the court affirmed the dc's grant of Section 403 FSA relief, which reduced the MM for a 924c.

            In US v. Easter, the court decided "whether, when considering a motion for sentence reduction under the FSA, a court must consider anew all of the 3553(a) factors...

Our answer is a resounding yes, (and we) vacate the denial of (his) motion and remand for reconsideration..." 19-2587, (3rd Cir. 9-15-20). In US v. Lee, 18-2391, the appeals court reversed an above-guidelines sentence, where there was nothing to show that the "criminal history has (any) bearing on the instant offenses,(and) does not justify the two-year upward variance...which nearly doubled (the) recommended sentence under the guidelines.   We therefore vacate...and remand for resentencing."

            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 Indiana)

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

BOP Still Refuses to Test Prisoners for COVID-19 as Prisoner Transfer Threaten New Outbreaks

 

Is the Newest DOJ Strategy to Infect Everyone, and Hope for the Best? Case updates

 

by Derek Gilna

 

            Anecdotal evidence appears to confirm that the federal prison system has adopted a policy of infecting everyone and hoping for "herd immunity?" If so, this is a very dangerous and cynical strategy which can't end well. With "Con Air" and bus transfers in full  "catch-up" mode, there has been no testing or quarantining of new arrivals, whether health, or formally infected, but "recovered,"  and no attempt to enforce CDC distancing guidelines.

            In those institutions where CDC has taken over, like Lexington, prisoners have been advised that rather than releasing large groups of prisoners to home confinement, they will be transferred to other institutions.  Waseca is also experiencing increased infection counts, but nationwide totals are expected to remain steady or rise slightly..

            Federal prison guard unions accuse the DOJ of, " making the virus explode.”

There have now been 126 reported deaths (which doesn't count the dozens that died in hospital or were belatedly released before passing), 93 of which were at higher risk of complications from COVID-19, and over 25% were seventy or older.  It does not appear that DOJ has made ONE COVID-risk  motion for compassionate release

            Nonetheless, the federal prison population is still down to 155,000, but has come at a cost of severe long-term health problems, including serious mental illness. According to one study, about 41% of adult respondents nationwide reported symptoms of clinical anxiety or depression during the third week of July 2020.  As a result of the flood of negative publicity for DOJ, during the pandemic, the public is all too familiar with the negative effects of mass incarceration in this country.

            The U.S. Supreme Court does not yet formally meet until October, but new petitions have caught our attention. Borden v. US, 19-5410, out of the Sixth Circuit, scheduled for a November 3 argument, asks whether the "use of force" clause in the ACCA encompasses crimes with a mens rea of mere recklessness. This case has attracted at least seven supportive amicus briefs, and a positive ruling will be of help to many with ACCA sentences.

            In the Fifth Circuit, in the case of US v. Franco, the court reaffirmed the general rule in a Compassionate Release(CR)  motion under First Step, that a Petitioner is NOT excused from filing a written request with the warden before filing a motion in court, stating that 3582(c)(1)(A) requires the 30-day notice.  Keep in mind that you do NOT need to file BPs on a CR denial before you file in court, only on CARES Act denials, an important distinction.

            Did your defense attorney raise issues of abuse, health problems, mental health issues in your case, or in the sentencing process?   If not, it can be argued that you received inadequate representation of counsel, and include that in your 2255.   Were you advised to go to trial instead of seeking a plea to a reduced sentence, and go to trial, despite no one in your district being found not guilty in the past year-all grounds for a 2255.    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; "Derek Gilna's Criminal Justice Blog."

BOP Reopens Visiting Rooms and Starts Prisoner Transfers, Unleashing New Risks for Spread of COVID-19 Infection

 

Justice System Overwhelmed by COVID-19 and Compassionate Release (CR) Petitions

 

by Derek Gilna

 

            In these unsettled times, why should the "justice" system be any less turbulent?

Although the system has always been imperfect, at best, and far from color-blind, the fact remained that the mechanism remained intact. However, the federal district court system is now strained to the breaking point.   Court clerks are unable to docket mailed-in filings in a timely fashion,  taking days instead of hours. Judges and their law clerks are inundated with CR cases, and if they choose to read them, often issue form denials, without bothering to explain their decisions. Overworked public defenders have also not risen to the once-in-a-lifetime challenge.

            The outside world has reopened, with testing of even asymptomatic individuals, social distancing, sanitizing,  and mask-wearing, which has helped reduce infection counts. In a prison system that refuses to test all but the sickest, and is reopening to visitors in the near future and busing sick people to new institutions, this means that the virus will be with us into the new year. However, these climbing prison virus counts creates an opportunity for even the previously-denied petitioners to once again request CR, (after again sending the form request to the warden) citing the new facts.

            Waseca, Minnesota, now has a minimum of 50 new cases, and the local news media have taken notice. Terre Haute has well over a hundred cases and climbing. USP Lee has over 20 staffers infected. Seagoville is still a hotbed, as is Lompoc, and Forrest City, with numbers dropping, then climbing again. FMC Rochester has a lot of new cases apparently driven by transferees.  Those elsewhere deemed "recovered" continue to suffer, with no medical care. The DOJ website shows increased number of infections.

            . Senator Elizabeth Warren, who would be expected to have a prominent role in a Biden administration, is not impressed with the DOJ actions: "The culture of secrecy that's been allowed to develop in the nation's prisons...is antithetical to (their status) in a democratic society.   We have...officials who act as if this is their private information."  

            In the circuits, in US v Bailey, 18-5607 (consol.), (6th Cir. 9-1-20), the court in a white-collar Medicaid case reversed  and remanded two sentences, for an incorrect calculation of a loss amount, as well as a miscalculation of a two-level increase for "mass marketing." In US v Seabrook, 19-436, (2nd Cir., 8-4-20) the court vacated and remanded a sentence handed down after a guilty plea to wire fraud, where the court erred by applying the commercial bribery guideline dropped by the government, an argument that should be applicable in other circuits. In a bit of good news, DOJ statistics show that those released early under First Step and COVI-19 criteria have largely NOT re-offended, despite DOJ fear-mongering in court filings. The ACLU found the same result in its July report, "Decarceration and Crime During Covid-19."

            If your institution is still afflicted with the Coronavirus, and even if you have already been denied for CR, consider refiling with the institution, citing new facts.   Also, if you are still eligible for 2255 relief for inadequate representation of counsel, seek help time  before your time expires. 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 Indiana), dgilna1948@yahoo.com; "Derek Gilna's Criminal Justice Blog. "