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."