COVID Crisis in BOP Puts New Emphasis on Clemency Process; Biden Promises Reform

 

"Will He or Won't He?" Multiple Election Lawsuits Might Delay Pardons, Commutations

 

by Derek Gilna

 

            By all estimates there are at least 13,000 pending commutation petitions either at DOJ or at the White House, awaiting presidential action, but there is concern that the pending lawsuits contesting vote results are slowing the process. When Jared Kushner returns from negotiations in the Middle East in the next several days, the logjam will break. It would be a good finish to 4 years of progress, and pressure Biden to top it.

            Biden has pledged to allocate billions of dollars of funding toward a grant program aimed at promoting crime prevention within state and local governments to reduce the source of crime: poor neighborhoods, child abuse, and limited education access, according to the Biden-Harris Transition plan. Biden says he could reduce the U.S. prison population by more than 50% by reducing or elimination MM's,  and  pledged to invest billions of dollars in a grant program aimed at promoting crime prevention within state and local governments.

            Ft. Dix, the focus of numerous articles, Congressional inquiry, and television coverage, has the dubious distinction of having the most "confirmed" COVID-19 cases, 232, (with perhaps hundreds more unconfirmed) of any federal facility, although the DOJ's inability or unwillingness to universally test makes me think that there are many that have similar numbers. There is also serious scientific doubt as to the health status of those who have "recovered," since many continue to experience serious side effects. It is clear that DOJ has no plan to eradicate the virus, and will not be able to for many months, especially since prisoners are unlikely to even see the vaccine until well into 2021.

            Although in terms of raw numbers, the situation at FPC Duluth may not seem high, it is a microcosm of poor DOJ planning and treatment failures. Duluth, one of the few camps not attached to a higher-security facility, is the northern-most federal prison, in an area of the country untouched by COVID-19 for many months. Lulled into a false sense of security, DOJ bragged in court filings that it was "managing" the virus, recent transfers, sloppy procedures, and botched "quarantines"  has resulted in infected prisoners sleeping on cots in an unheated gym, while staff moves from infected to uninfected dorms without concern for DOJ protocols.  What the numbers are is anyone's guess, but out of a population of 500, it could also be as high as 200, an avoidable crisis.

            Nearly 25% of all inmate cases and 30% of the staff cases have been reported within just the last month. Weekly case report: Alderson, 20 and climbing;  McDowell, over 29; Gilmer, 100+; Ashland, over 181; FMC Lexington and Atwood, 317 (12 deaths); Forrest City, 50+; Aliceville, 100 plus; Ashland, 200+; Duluth, 100+; Hazelton, 10+. So far, heavy DOJ censorship on virus news has only slowed, not ended reports.

            In U.S. v. Green, 17-10346, 11-25-20,  the 11th Circuit found that RICO conspiracy "does not qualify as a crime of violence under 924cm and vacate...and remand." The 7th Circuit slapped down DOJ's argument that the old regulations and SC statements on CR still apply, citing the 2d Circuits Booker decision to follow only the "extraordinary and compelling reason" in deciding whether to grant relief.

            Let not your heart be troubled.

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

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

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

 

ACLU Files Class Action Against Bureau of Prisons and FMC Butner for Continued Bungling of COVID Response

 

Class Action Against FMC Butner Moves Forward, Alleges Deliberate Indifference

 

by Derek Gilna

 

            Like you, I am intrigued by life's mysteries. Why is the recipe for Kentucky Fried Chicken a well-kept secret, when countless tell-all books have been generated by former White House staffers about supposedly private conversations with the President?  How does DOJ manage to locate and serve expired foods when this country is the world's  largest food exporter? How does a certain aged and declining Presidential candidate who did no campaigning garner 15 million more votes than his (still) wildly popular former boss (Obama) when reelected in 2012? Why is it so hard for DOJ to properly medically classify, competently treat, or release aged, disabled, non-violent offenders who have served high percentages of their sentences and who have programmed non-stop?

            For now, I will just stick to the facts that most media outlets do not seem particularly interested in. The ACLU in late October filed a comprehensive and well-documented class action against FMC Butner, which lays out in excruciating detail the DOJ's failure at its primary MEDICAL center to properly treat or release health-compromised prisoners in the face of COVID-19 infestation. (This lawsuit will be extensively covered in my article in Prison Legal News.)   There are at least 160 active COVID cases, and probably more that are undiagnosed, but DOJ continues to avoid mass testing, when in the US more than 1 million are tested daily. Butner has also distinguished itself with virtually NO CARES Act releases, and no approvals of initial compassionate release applications.  Hallinan, et al.  v. Scarantino, et al., 2020-ct-3333, U.S.D.C. for the E.D. of North Carolina, October 26, 2020.

            Current COVID counts: Ft Dix, 214; FMC Rochester, 110; Waseca, over 200; Milan, over 100; Pollack, 25-30; Ashland, over half, with local hospitals at max capacity; Greenville, 700; Duluth, 125; FMC Lexington camp, 292,  9 death; Gilmer, 10; Yazoo City, over 50; Tallahassee, over 50; : Pekin well over 100.  The DOJ Inspector General on November 17 cited Oakdale and Pollock for failure to prevent and contain the virus.           Forrest City, hit hard earlier and with current cases, is reducing the number of prisoners in its overcrowded and mold-infested facilities. However, inter prison transfers continue to fuel outbreak in DOJ facilities across the county. Have your families write or call your Congressmen or Senators, a strategy which has focused attention on Ft. Dix, and pass along the fact that DOJ for a time appeared to have a strategy of deliberately infecting their helpless charges to build (or test)  "herd immunity."

            If you already filed and were denied for CR, especially if the judge cited the lack of prior infections at your facility, or you were already infected,  you are eligible to file once again, citing the new outbreaks, and scientific evidence that shows that those who have "recovered" will have live-long side-effects and likely a higher death rate.

            The good news is that all of Joe Biden's potential candidates for Attorney General, who is charge of the federal prison system, are committed to continuing criminal justice reforms, although Senator Corey Booker, with no prior ties to the criminal justice bureaucracy to weigh him down, would be the preferred candidate.

            Fear not, and let not your heart be troubled.

 

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

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

dgilna1948@yahoo.com (backup: dagilna1948@yahoo.com),

Blog at "Derek Gilna's Criminal Justice Blog."

             

Congress and the Media Awaken from Months-Long Slumber Over BOP's Deliberate Indifference in COVID Response

 

DOJ COVID-19 Response Receives Intense Post-Election Scrutiny; Deliberate Indifference, Anyone?

 

by Derek Gilna

 

            Anyone who still harbors the illusion that government is the answer to all of your problems need only turn to the incredible incompetence exhibited in the DOJ's response to the COVID-19 crisis in federal prisons.   Already cited by the its own Inspector General for failure to provide adequate, well-trained prison medical staff nationwide, it has resorted to "Treatment by Press Release," full of self-congratulations on its feeble response, rising to a level of misrepresentation envied by the Chinese Communist Party apparatus, and dutifully regurgitated by asst. U.S. attorneys until very recently.

            The mainstream media finally has awakened to this ongoing crisis and nowhere is the spotlight brighter than at Ft Dix. Senator Corey Booker, mentioned as possible AG in a Biden administration (much more on that next week), has sent a scathing letter to DOJ. In it, he demanded that all prisoners be tested and cease all further transfers, noting DOJ "does not have an effective plan to ensure COVID-19 positive inmates are not transferred between facilities." The rest of the media now senses blood in the water, and even judges have noticed. A federal judge has ordered U.S. attorneys for FCI Fort Dix to provide details on how the prison has mitigated the spread of  cases there top 200.

            Unfortunately, Ft. Dix is not alone in its misery: Ashland, 20, Gilmer, 107, Duluth, 100, Pekin, both men and women, over 200, FMC Rochester, over 100, Forrest City, over 50,  Waseca, 100,  with many others unable to report due to apparent censorship of emails and reg. mail. The misguided attempts to infect everyone continues.

            Biden has pledged to allocate billions of dollars of funding toward a grant program aimed at promoting crime prevention within state and local governments that get to the root of the source of crime: poor neighborhoods, child abuse, and limited education access, according to the Biden-Harris Transition plan. “After incarcerated individuals serve their time, they should have the opportunity to fully reintegrate into society, earn a good living, and participate in our democracy as our fellow citizens,” Biden’s campaign website states.

            Compassionate releases continue: United States v. Grimm, 2020 WL 6165286 (D. Nev. Oct. 21, 2020),14 years for mortgage fraud, Lupus, diagnosed after court ordered it. United States v. Owens, 2020 WL 6162783, at *1 (S.D.W. Va. Oct. 21, 2020),130 months for crack distribution, reduced to 110 months, has served 92 months,FCI Allenwood Medium, Hypertension, abdominal hernia, missing left kidney. Frushour v. United States, 2020 WL 4734907, at *1 (E.D. Mich. Aug. 14, 2020), Defendant’s projected release date is July 17, 2024, sentenced to 108 months in 2016 for child porn, FCI Milan,78 years old, diabetes, heart murmur, hyperlipidemia, skin cancer, morbid obesity. US v. Nazario-Montijo, 3:17-cr-00278-JAG, ECF 273 (D.P.R. Sep. 17, 2020.) granting reduction in sentence where defendant was sentenced pre-COVID to 24 months pursuant to a binding plea agreement, his self-surrender date extended, obesity and mental health conditions that could be exacerbated by BOP infection mitigation efforts.

            Fear not, and Let not your heart be troubled.

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

113 McHenry Rd., #173, Buffalo Grove, Ill (and IN.)

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

Prison COVID Nightmare Continues; Democrats Are Now In a Position To End That and Advance Justice Reform . Will They Take It?

 

Muddled Election Results, Probability of Divided Government Boosts Justice Reform

 

by Derek Gilna

 

            Although Joe Biden appears to have won the Presidency based upon current projections, pending several legal challenges, a Biden presidency would most certainly advance criminal justice reform in many ways. Progressive platforms call for the abolishment of private prisons and mandatory minimums, liberalizing marijuana laws      (perhaps retroactively) , and reining in prosecutorial overreach.    Of course this requires some Congressional approval, but there will be no step backwards. Unfortunately, the prospect of further systemic reform of the FBI and DOJ, and its ugly stepsister, the federal prison system, is uncertain, I still expect clemencies to ramp up shortly.

            The latter is of prime significance, given the upward spike in reinfections of prisoners already in a fragile state from years of incarceration and indifferent medical care. On that front, there is only very bad news. Leading the way is Ft. Dix, which has tallied at least one new death (or more), well over 500 infections, and no apparent plan to stem the tide, except a misguided attempt to infect everyone, contrary to CDC guidelines.

            Waseca is also yet another laboratory for forced infections, with well over 75% of all purposefully infected, with at least one likely death, hard to verify since DOJ has taken advantage of election mania to bury the bad news. Duluth has over 20 cases, and FMC Rochester has over 100 cases and many staff; FMC Springfield, has 160 cases. Lompoc has many reinfections, as has Forrest City. Unfortunately, at Bryan, Texas (and other locations), staff have begun threatening "shots" for those sharing the truth with friends, family, and advocates.   Unjustified blocking of emails to advocates, lawyers, and even the ACLU is all part of the bold "nothing to see here" strategy. DOJ continues to underreport case totals, and suppress information on new deaths.

            On a more positive note, courts continue to grant compassionate releases (CR) in virtually every jurisdiction, including repeat filings when new infections began to peak. In United States v. Baylor, 2020 WL 5970679, at *1 (D.D.C. Oct. 8, 2020), the court released an Alderson prisoner suffering from chronic kidney disease and hypertension, whose initial petition was denied because there were no cases at the time of her initial filing. The CDC has not only expanded the categories qualifying for relief, but also the risk to vulnerable individuals of reinfections, when follow up care is nonexistent.

            The court granted CR in United States v. Sain, 2020 WL 5906167, at *1 (E.D. Mich. Oct. 6, 2020) to a prisoner with chronic kidney disease, and asthma, and provided this interesting quote when the government objected to the release:  "The government asks the Court to view Sain in the same light as if it was 2007. But Sain has not been in a time bubble for nearly 13 years, and Pepper v. United States, 562 U.S. 476, 490-93 (2011), allows the Court to consider post-sentencing rehabilitation efforts in re-sentencing. (He) has already served ....13 years in prison – a substantial punishment...this amounts to over 73 percent of his sentence...longer than...his co-conspirator’s sentences."

            Be not afraid and let not your heart be troubled.

 

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

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

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

 

BOP Still Clueless on How to Respond as Second Wave of COVID-19 Infections Arrives

 

COVID Second Wave Rolls Over Federal Prison System;  More CR Grants Made

 

by Derek Gilna

 

            According to a new study, prisoners are 5.5 times more likely to get Covid-19 and three times more likely to die from it, according to a study from researchers at Johns Hopkins and UCLA published today in the Journal of the American Medical Association.  “COVID-19 in US prisons is unlikely to be contained without implementation of more effective infection control.” In facilities with outbreaks where prisoners were tested en masse, infection rate exceeded 65% in multiple cases.

            Ft. Dix has over 165 confirmed cases, and at least one death. Waseca has over 85% infected, with poor treatment from short staff. The Bryan, Texas camp has many individuals infected. Big Spring has over 100, FCI Bastrop, 90, FCI Pekin, over 100, FPC Duluth, over 10, Mariana, 46, Coleman over 100,  Springfield, MO, over 100, Alderson, over 11 new, from transfers, MCC Chicago, 142. Elkton, Forrest City, Butner, Carswell, and Oakdale are starting to see re-infections of previously "recovered" individuals. A study says that lockdowns are contributing to declining health of at risk sick prisoners.  

            The U.S. Supreme Court will hear argument on U.S. v. Borden, 19-1512, out of the 6th Circuit, asking whether the "use of force" clause in ACCA encompasses crimes with a mens rea of mere recklessness. Statistics show that FSA reductions via 404 are having an effect: 3,363 offenders were granted a sentence reduction, 65.6% were assigned to the highest Criminal History Category (VI),  and 56.3% were CO's.

Offenders received an average decrease of 71 months (24.9%) I can assist with these.

            Another study shows that the poor representation you got may be as a result of your attorney's alcohol problem. Nearly 70% of lawyers are likely to have an alcohol problem at some time during their career and finding that while 9% of U.S. adults meet the criteria for alcohol abuse or dependency, 15-18% of lawyers were problem drinkers. Something to consider if you consider  a 2255 habeas for inadequate representation.

            In the circuits, there were a host of positive CR decisions. A prisoner with chronic kidney disease, and hypertension, gained relief. "The extraordinary and compelling circumstances presented by the pandemic have empowered the Court to revisit the sentence it imposed....the Court will exercise its discretionary authority to reduce Johnson’s sentence to 300 months...The fact a defendant, if sentenced today, would receive a drastically lower sentence for the same conduct has been found by several courts to constitute “extraordinary and compelling” circumstances justifying sentence reduction under § 3582(c)(1)(A)." United States v. Johnson, 2020 WL 6063733, at *5 (D. Md. Oct. 14, 2020).

            A Ft. Dix prisoner was granted CR, based upon an  ECG marked “abnormal,” asthma, sleep apnea, pre-diabetes, obesity, chronic kidney disease and hypertension.  “In fact, the Court is somewhat skeptical of the Government’s confidence in BOP containment efforts. The BOP did not institute a policy requiring staff to wear face masks until August 27, 2020, and even that guidance contemplates religious exemptions, medical exemptions, and outright refusals to comply with the mask mandate.” United States v. Brown, 2020 WL 5801494, at *1 (E.D. Pa. Sept. 29, 2020)

            Let not your heart be troubled, and be not afraid.

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

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

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