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
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
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,
