New Cases Grant Sentence Relief Based upon Not Just COVID-19, but Based upon First Step Act Changes: ACLU Sues BOP

 

First Step Act Relief Transitions from COVID-19 Based to Broader Sentencing Review;

Stimulus Check update; Will ACLU Waseca Class Action Spur DOJ  Accountability?

 

by Derek Gilna

 

            Holiday season is when everything moves slowly. Both the mail and the court systems appear to have come to a dead stop, as vacation days get used to maximize time off of already understaffed clerk's offices.  However, several developments merit attention as we move into 2021 and a change of Presidents.

             Despite DOJ efforts to paper-over the dire situations in the federal prison system by implying that the new vaccines will soon be available, it is simply not true. DOJ has issued no general public statement regarding vaccines, simply  because it will not be given to it anytime soon, and will go the guards first. Prisoners face not only the problem of contracting the disease, but the lack of treatment thereafter. There is simply not the trained staff or resources to do so. However, even the development of a vaccine will not slow FSA releases, as the following cases illustrate.

            Judges are granting relief for a variety of reasons not all related to COVID. Although the highest percentage of FSA releases are based upon the potential mortality for the person contracting COVID, many of the newer decisions are not. People who have minimal or no risk factors, but whom have family that are ill or elderly, or have excessive sentences, have also won relief.    This is an exciting development, as it provides a new form of sentence reduction that does not depend only upon the whims of Congress, the Sentencing Commission, and the President.

             See just two of many examples: United States v. Lyle, 2020 WL 7247780, at *1 (S.D. Tex. Dec. 9, 2020),1,141 months for bank robbery, reduced based on discrepancy of comparative sentences, to 493 months United States v. Allsbrook, 2020 WL 7202577, at *1 (S.D. Ohio Dec. 7, 2020); United States v. Brown, 2020 WL 6482397, at *1 (D.S.C. Nov. 4, 2020) 262 months under 851 and mandatory guidelines for less than 5 grams of crack, sentenced in 2003, initially said not eligible for crack under First Step Act, but 4th Circuit reversed, resentencing to time served.

            Also: United States v. Scott, 2020 WL 2467425, at *3 (D. Md. May 13, 2020)

“Multiple district courts have reasoned that “the First Step Act’s change in how sentences should be calculated when multiple § 924(c) charges are included in the same indictment constitutes an extraordinary and compelling reason under 18 U.S.C. 3582(c)(1)(A). 

See United States v. Owens, No. 97-CR-2546-CAB, ECF 93 at 4 (S.D. Cal. Mar. 20, 2020) (collecting cases). The court agrees with the reasoning of these courts.”

            Additionally, the Fourth Circuit Court of Appeals became the fourth appellate circuit to hold that district courts reviewing an inmate’s motion for sentence reduction under 3582(c)(1)(A) have the independent discretion to determine if there are “extraordinary and compelling reasons” warranting the requested reduction. The Fourth Circuit joins the Second, Sixth, and Seventh Circuits in recognizing district courts’ broad discretion when reviewing requests for sentence reductions and compassionate release.

            Recent counts: Carswell, over 300; FCI Schuylkill, 200; Yazoo, over 150;  FCI Gilmer, 142; Devans, 100+;  Terre Haute, over 100; Pekin. over 100, and many others.

            Although the stimulus finally passed, there is no bill text to refer to for a definitive answer, but it does NOT appear that prisoners and their  spouses are excluded from receiving payments of at least $600 per person.   There is confusion as to how the IRS is sending out the FIRST checks, although prisoners have received funds through the lockbox. The 2020 tax forms, not due out until early 20201, will have a section where you can apply for the first stimulus if you have not already applied, and it does not appear that the November deadline will prevent collecting that check.   This info to be updated..

            What the new Presidential administration? If one is go by campaign promises, there will be new progress on mandatory minimums, and perhaps even a change to the heavily-criticized PATTERN sentence credits. Biden has yet to name an attorney general, so we have no guidance as to priorities there, but whomever it has to contend with the DOJ bureaucracy, not known for its responsiveness to reform.

            One more reason for optimism is the newly-filed ACLU COVID class action against the Waseca women's prison, which has been one of the most egregious offenders of intermixing non-positive and positive prisoners.   It is set for status January 6, 2020, and I plan to be present for that hearing, and will report back.

            In the meantime, do something to make your day and someone else's a little better. Let not your heart be troubled.    Happy New Year.

 

Federal Legal Center,  Derek A Gilna, MERJ, JD, Director,

113 McHenry Rd. #173, Buffalo Grove, IL   60089,

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

 

 

 

Stimulus Check Agreement Reached in Congress: Too Early to say if Prisoners, Families, Will Benefit

 

No, Ir's Not Your Imagination: Nationwide Prisoner COVID Numbers Reach New High;

Some Good News: New Stimulus Passed; First Step Act Reach Expanded in Sixth Circuit

 

by Derek Gilna

 

            As the nation prepares for a most unusual holiday season, there is some good news to report.   Congress agreed on a new Stimulus bill which will include direct $600 payments to individuals.  I will report on the exact language when  available, and whether prisoners will also benefit,  and how you can still get the first stimulus payment.

            New COVID cases in the nation's prisons this week reached their highest level since testing began in the spring, far outstripping previous peaks in April and August. No federal facility has been spared, as hot spots have flared, abated, and flared again, with DOJ continuing to undercount cases. The pandemic has laid bare the utter inability of the federal prison system to fulfill its most basic responsibility of protecting those over whom it wields the power of life or death, and that often coldly denies  basic medical care. Whatever its virus management "plan," was, staff was never trained to execute it.

            How does one deal with this onslaught of indignities and suffering? We know that suffering produces perseverance, perseverance, character, and character, hope, and rewards persistence. Grace and forgiveness arm you mentally to move forward..

             Of the 10,000 federal compassionate release requests, wardens denied all but 156 (2%) of them. District courts, after an initial spurt of relief, have been so swamped with filings that most struggle to even docket them in a timely fashion. Nonetheless, there continues to be relief granted, and a slow trickle of DOJ CARES releases, and an unprecedented flood of mainstream media interest in prisoner conditions, which have focused on the immorality and inhumanity of current conditions.

            FMC Lexington, all units, is one of the new hotspots, with cases at the locked-down women's unit,  over 300 at the men's unit, and over 20 deaths; Lompoc, previously criticized in a DOJ IG report, has flared-up, with over 65 cases, and many hospitalizations; Devans, over 65; Ft. Dix, still in the 100's; Terre Haute, over 265, including Death Row; Rochester, 121; Schuylkill, 129 inmates. Yazoo City continues to get transfers from hot-spots, with over 35 positives, and at least one death. .  This only scratches the surface (apologies to those places not included), as even "recovered" individuals suffer with residual breathing issues and limited medical care.

            Biden still has not put forth an AG candidate, although Merrick Garland, Doug Jones, Deval Patrick, and Sally Yates have been mentioned. Since all of the other cabinet picks so far have generally been non-progressives, will he appoint an "intuitionalists," like Judge Garland, former prosecutors like Jones (and former senator, or former Acting AG Yates, or a Patrick (a former civil-rights lawyer, and former Governor of Massachusetts)? Whomever it is, it will be an indication of whether Biden will keep his promise to eliminate mandatory minimums and to cut the prison population.

            A Sixth Circuit panel  in US v. Henry, No. 19-2445 (6th Cir. Dec 18, 2020), ruled that FSA's reduced sentencing terms are applicable in resentencing: "the legislative history of the First Step Act demonstrates Congress’s intent to remedy overly punitive mandatory-minimum sentences faced by defendants, including defendants resentenced after the Act’s enactment."  Will Congress extend that relief retroactively? Are prisoner Pell grants on the immediate horizon.?  

            Fear not, and Let not your heart be troubled.

 

Federal Legal Center, Derek A Gilna, JD, MERJ, Director,

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

dgilna1948@yahoo.com (alternate:dagilna1948@yahoo.com), "Derek Gilna's C J Blog."

 

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Bureau of Prisons' "Herd Immunity" Approach to Federal Prison Covid Crisis Is Only Explanation for Rising Infection Counts

 Discredited "Herd Immunity" Theory Apparently Guides DOJ Prison COVID Policy; Prisoners Low on List for Vaccine; Sweeping Marijuana Reforms on Horizon

 

by Derek Gilna

 

            Poor central office planning, poor staff training, discredited theories, and ignorance are on display every day in the federal prison system, but it took COVID-19 to bring this to the public's attention, as rising prison cases spill over to surrounding communities. A deadly combination of the above factors, along with implementation of flawed "herd immunity" theories, championed by former presidential adviser Dr. Scott Atlas (and others), have spread illness, suffering and in some cases, death to thousands. Unfortunately, it is unlikely that federal prisoners will see any vaccines until Summer.

             It will likely take years of investigation and hundreds of lawsuits to uncover all of the facts, but it is clear that at least in federal prisons, there was a policy of mixing positive and non-positive individuals, with clear "deliberate indifference" to the long-term health effects even upon "recovered" patients, not to mention the effects on the elderly and chronically ill. Document what you have seen and experienced.

            Give AG Barr some credit: his memos strongly recommended aggressive use of the release tools DOJ already possessed. However, he had only limited influence on the career DOJ prison officials, who know he leaves office soon. Honest career officials bluntly state that there will be no more CARES releases. It is up to Congress, the Sentencing Comm.,  and the President to change the system with bold initiatives.

            Total DOJ virus numbers are up. FPC Duluth, has the highest percentage of infected, with over 200 out of a population of less than 300.   Other counts: FCI-Englewood, 540; .FMC, Lexington, over 300;  Beaumont Low, 303; Loretto, over 300;  Ft. Dix, 268; Philadelphia, 200+; Ashland, 200+;Yazoo City, 200+; Cumberland, 200; Butner, 150+; Schuylkill, 129;. Rochester, 111; Allenwood low, 20; Carswell, 20+.

            In more positive news, H.R. 3884, which passed the House, would federally decriminalize cannabis (marijuana), expunge the records of people convicted of federal cannabis offenses, and require resentencing of some federal prisoners. This bill, if and when it becomes law, would result in thousands of time-served releases of marijuana prisoners after required resentencings, as well as additional funding for programming.

Thanks to COVID, the concept of restorative justice is gaining wider acceptance.

            The 4th Circuit became the fourth circuit to embrace a robust view of sentence reduction authority under 3582(c)(1)(A after FSA. US v. McCoy, 20-6821(Dec. 2, 2020), following Zullo from the 2d Circuit. The 7th Circuit reversed and remanded denial of a CR: "Until...§1B1.13 is amended,...the Guidelines...lack an 'applicable' policy statement covering prisoner-initiated applications for compassionate release...judges must operate under the statutory criteria—extraordinary and compelling reasons." US v Gunn, 20-1959, 11-20-20. Also, potentially significant is Wright v. Beck, 19-55084, (9th Cir. 2020), in which dismissal of a 1983 action in a firearms seizure was reversed, and based upon a Monell failure-to-train, and on due process and 4th Amendment grounds.

            Be not afraid, and let not your heart be troubled.

 

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

113 McHenry Rd., #173, Buffalo Grove, IL 60089, and Indiana, dgilna1948@yahoo.com, 

"Derek Gilna's Criminal Justice Blog" on Google Blogspot.

BOP and DOJ COVID-19 Ineptitude and Dysfunction Will Have to be Addressed by President Biden's Criminal Justice Team

 

DOJ COVID Confusion Won't End Under Biden; Vaccine Rumors Are Only That

 

by Derek Gilna

 

            Two headlines in the last week relating to prisoners caught my eye.   First, AG Barr is hinting that he will resign before the end of Trump's term,  stating that he "has done everything that he wanted to do as AG," and there's no reason to stick around. That would explain Barr's disinterest in enforcing his own  COVID memo encouraging prisoner releases.  

            The second headline concerns the availability of the COVID-19 vaccines for prisoners.   Contrary to rumor (misinformation), don't expect those to find their way into federal prisons anytime soon. When it comes, guards will get it first (Source: AP), prisoners, in late 2021.

            Biden's criminal justice advisors in Congress, including Corey Booker, are well aware of DOJ's ineptitude in its virus response, as shown by this week's House Oversight Committee grilling of the Director.  I wish Biden the best of luck in unraveling the dysfunctional prison bureaucracy and holding it and the US Marshals responsible for flying infected prisoners all over the country. It won't be easy. According to guard union complaints, staff is burning out due to augmentation, illness, and stress:   "We have nurses working in a housing unit.  How do you justify reassigning a nurse?"  If they're in the housing unit, they're not handling sick call or treating COVID patients.

            Biden can be expected to re-task the U.S. Sentencing Commission to review current guidelines, and issuing formal guidance to reduce unreasonable long sentences and promote rehabilitation. This, working with FSA, should also reduce prisoner counts.

            Current infection counts: Ft. Dix, 750+; FPC Duluth, 200+, our of 293' McKean, 75; Ashland, 261, 5 hospitalized, 1 death; Terre Haute, 470; Rochester, 110; Carswell, 80+; Lexington, 5 of 9 units locked, 330 +; McDowell 120, some in hospital, perhaps 4 on ventilators; Pekin, men 80+, women, 120; and Forrest City, 100, with reinfections;

            According to a new study, "Patients from ethnic minority groups are disproportionately affected by Coronavirus disease (COVID-19). We performed a systematic review and meta-analysis to explore the relationship between ethnicity and clinical outcomes in COVID-19." Outcomes, "were searched up to 31st August 2020,  for studies reporting COVID-19 data disaggregated by ethnicity. Outcomes were: risk of infection; intensive therapy unit (ITU) admission and death." https://www.thelancet.com/journals/eclinm/home.

            "COVID-19 is tied to deadly brain inflammation in some patients....The study found a concerning increase in patients with a rare and sometimes fatal neurological condition called ADEM. COVID-19 may cause dangerous neurological problems, including delirium, brain inflammation, nerve damage or stroke," it said. www.livescience.com.

            To date, only 4% of prosecutors in the U.S. who were involved in wrongful conviction cases tainted by prosecutorial misconduct have faced any kind of personal or professional discipline, according to the National Registry of Exonerations, of the Innocence Project..  And only a handful of these prosecutors faced serious disciplinary action, such as disbarment from the practice of law, as opposed to a brief suspension or “reprimand” by the state bar.

            In  US v Clark, 19-7046, (10th Cir. 11th Cir. 11-17-20), vacated an Indian country sentence for assault, finding that there was an insufficient explanation of the reasons for the imposed sentence. In U.S. v. Senter, 18-11627, (11th Cir. 11-13-20), the court granted a COA to review denial of a 2255, and agreed with defendant that "he no longer qualified as an (ACCA) in light of Johnson..., because his...1998 Alabama conviction for attempted first-degree robbery has no state law elements."

            Let not your heart be troubled.

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

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

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