Will Biden Continue Prisoner Reductions Started Under Trump?

 

Federal Prisoner Count Drops 38,000 in last Four Years; Biden Urged To Continue Trend

 

by Derek Gilna

 

            While Congress obsesses over an impeachment of the old President, the new President has promised to enact a whole series of reform measures that would continue to reduce federal prisoner counts, which dropped 38,000 four years ago to 151,646 on inauguration day. (Thank you, Jared Kushner.) The new President has asked for the passage of the Safe, Accountable, Fair, and Effective (SAFE) Justice act, introduced in the House which takes a broad-based approach to improving the federal sentencing and corrections system, from front-end sentencing reform to back-end release policies and pledges to end mandatory minimums. The public supports these reforms.

             Biden is also expected to bring forth a plan to bring the COVID-19 nightmare to an end in federal prison, especially after the shell-shocked general public's concerns with its own mortality ebbs. There is no time to lose.

            The DOJ's veil of secrecy continues to be drawn tightly over federal prison's public health crisis, as DOJ continues to undercount cases, and individual institutional responses and treatment strategies continue to be puzzling in their inconsistency and ineffectiveness. Based upon current numbers of infected individuals, I would argue that the DOJ website numbers are probably only about one-quarter of the true number..

            Rochester has 408 inmates and 57 staff ill; Carswell over 300 (at least one death), Carswell camp, 270 out of 300,  Pekin, 700, Atwood camp, 125, and Butner, still around 200.  Ft Dix continues to receive more infected transferees, suffered a recent death in its camp, and still has a large group of positive COVID-19 cases. Prisoners have filed a new lawsuit regarding the inhumane conditions. Compassionate Releases continue to be granted, as well as 3582 relief.

            In US v. McDonel, No. 07-20189 (ED Mich. Jan. 13, 2021), was convicted of multiple roberries involving a gun, receiving over 100 years. He sought relief under 18 U.S.C. 3582(c)(1)(A)(i), as amended by section 603(b)(1) of the First Step Act of 2018, Pub L. 115-391, 132 Stat. 5194, 5239, which allows a sentence reduction for “extraordinary and compelling reasons."  "The gross disparity created by the legislative changes, which mitigated the harshness in the sentencing scheme to which McDonel was subjected, coupled with McDonel’s youth and rehabilitative efforts, qualify as extraordinary and compelling reasons under section 3582(c)(1)(A)(i). Other factors that the Court also must consider favor relief.  The motion will be granted."

            In US v. Nafkha, No. 2:95-CR-00220-001-TC (D Utah Jan. 11, 2021):

" Nafkha moves for a sentence reduction under 18 U.S.C. § 3582(c)(1)(A)(i), asking the court to reduce his nearly 73-year sentence in the custody of the United States Bureau of Prisons (BOP) to time served.  Nafkha has served approximately 25 years of his sentence. He asserts that the circumstances surrounding his sentence — which consists of four consecutively “stacked” counts under 18 U.S.C. § 924(c) — constitute extraordinary and compelling reasons for his early release.  The court finds that Nafkha has satisfied his burden of showing extraordinary and compelling reasons to release him and that the balance of sentencing factors set forth in 18 U.S.C. § 3553(a) warrant his release. Accordingly, his motion is granted."

           

 

 

            Seek and you shall find.   If you don't start your search, you will never find what you are looking for. In these difficult times, be not afraid, and let not your heart be troubled.

 

Federal Legal Center, Derek A. Gilna, JD, (De Paul Law) MARJ, Director,

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

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

 

 

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Biden Has No Excuse to Not Champion Criminal Justice Reform; BOP Quietly Starts Vaccinating, Hoping to End Its Prison Misery

 

If Biden Is to be Successful in Justice Reform, His Top Priority Must be to Limit Prison Secrecy';  DOJ Quietly Rolls out Vaccines in Some Prisons, Without Studying Long-Term Effects on Its Recipients Who are Already Ill

 

by Derek Gilna

 

            On this MLK holiday, and inauguration week, I pause to reflect on Dr. King's call for hope in the face of hardship, such as the presence of COVID-19  in  federal prisons. (See next PLN issue.) This crisis has highlighted DOJ's incompetence and inefficiency in stemming the tide of physical and mental suffering, illness, and death for the helpless and the often hopeless. Note to Public: New "lockdown" has been going on in one form or another for months.

             Federal district courts, flooded with compassionate release petitions, struggle not only with the processing of these filings, but also making sense of the calculating misstatements (and omissions of material facts)  provided by DOJ to judges trying to find the truth. (If DOJ's methods are working so well, why the hush-hush, publicity free vaccinations of sick people, contrary to every medical expert's advice.) The Biden administration can bring an end to the peddling of these taxpayer-funded falsehoods by ripping off the veil of secrecy protecting both the federal and state prison systems, and mandating increased oversight and public access to prison operations.  What he does in this and other areas will determine whether he really means what he says about reforms, or is all talk. With Democrats controlling Congress and the Presidency, he has no excuses.

            The ongoing FCI Waseca litigation is exhibit A for this need for change. Although the most recent order of the magistrate judge recommends denial of both the writ of habeas corpus and for a temporary restraining order on behalf of the proposed class, the government response is replete with inaccuracies, which still provide a rare window into its failures to properly handle the crisis. The judge comments speak more to  the considerable procedural  challenges of combining a habeas filing with injunctive relief in a class action, rather than to the merits of the well-drafted complaint.

            Meanwhile, while DOJ congratulates itself on its response to the crisis, the virus rages on in federal medical centers, like Rochester, Devans, Springfield, and Carswell, with Rochester holding the dubious distinction of  395 confirmed cases of Covid-19 (74 still recovering)  out of 623 people. Carswell has at least 60 new cases, while across the system  counts continue to rise despite DOJ censorship.  As disease counts drop in the public at large, those affected in the prison system continue to rise and fall, showing that the "action plan" is only propaganda.

            Out of the public eye, the U.S. Supreme Court has new pending petitions important to prisoners,  some  of which concern application of the First Step Act (FSA).In Terry v United States, 20-5904,  the justices agreed to weigh in on a technical sentencing issue that has significant implications for thousands of inmates: whether a group of defendants who were sentenced for low-level crack-cocaine offenses before Congress enacted the Fair Sentencing Act of 2010 are eligible for resentencing under the First Step Act of 2018. In US v Gary, 20-444, the petition asks whether a defendant who pleaded guilty to being a felon in possession of a firearm is automatically entitled to plain-error relief if the district court did not advise him that one element of that offense is knowing that he is a felon.

            The Third circuit ruled in an interesting white-collar case, US v Harra, et al, 19-1105 (consol.), wherein the court reversed and remanded an SEC-based "false reporting" and conspiracy case regarding former officials of the Wilmington Trust Corporation, that failed in 2008.

            For those of you who feel that the new vaccines might hurt your pending or future CR petitions, note the following: (1) no clinical studies (regardless side effects or safety)  have been done on the effect of a vaccine on Immunocompromised individuals; (2 "Live attenuated vaccines carry the risk of converting to pathogenic strains with particular risk in Immunocompromised patients." Note that in the outside world these vaccines are NOT being given to patients who have had or might have COVID-19.  www.hematology.org. (Oh, and they must be administered properly and on a strict schedule to be effective, regardless of safety concerns.)

            Concentrate not on the "Why," but the "How." 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   (and Indiana),

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

           

 

Biden Nominates Garland to be Attorney General: Will New President Deliver on Criminal Justice Reform Promises?

 

Biden Nominates Garland as Attorney General; Capitol Breach Shakes up Congress; Updates on Minnesota Class Action, Stimulus Checks,  "Solar Winds" Hack, Biden Justice Relief Initiatives.

 

by Derek Gilna

 

            You may have seen that the outgoing President's "going-away party" in DC the past week got a little rowdy. Intra-family squabbles can be messy. However, for those truly paying attention, it represents the end of an era of business-as-usual in DC, despite mainstream reaction to the incident.  Prisoners will benefit indirectly from the "disregard the will of the people at your peril" idea sweeping the country, and both parties agree on the need for justice reform.  

            However, DOJ officials arguing that the government's (mis)handling of the pandemic at Waseca did not constitute "cruel and unusual punishment" apparently did not get the "end of business as usual" message. In a 90-minute hearing on Tuesday, for which I was a "virtual spectator," the ACLU effectively demolished the DOJ's indefensible  position in convincingly arguing for a Preliminary Injunction seeking broad relief. More exciting developments to come, but the litigation has only just begun.

            Biden's nomination of current DC Appeals Court Judge Merrick Garland as AG was interesting, as he is an "insider," but with a keen mind, and centrist-liberal viewpoint.   I wish him luck at continuing the trend to reining in rogue, self-serving Asst. US Attorneys trying to build careers via "score-settling" or overbroad prosecutions and boot-strapping possession cases (which should be handled by the states) into attention-getting distribution extravaganzas. Progress will be incremental but steady.  Biden should immediately implement the broad justice reform set forth in his platform, including passing the Heroes Act, and  nominating public defenders instead of prosecutors to open federal judgeships. He has pledged to  appoint a federal clemency board, removing clemencies from DOJ        

            You may not have heard of the massive Russian intelligence breach of both public and private data banks in the so-called "Solar Winds" incident, but reports say that confidential federal (and DOJ) records were accessed.  ( Maybe they found that ephemeral  January, 2020 DOJ "Action Plan" to control the virus in federal prison.)

            Regarding the second stimulus payment, I reiterate that if you have not received the first payment, you should file for both the first $1200 and the second $600, by utilizing the paper 1040 form on page 2. You’ll see the spot to enter the amount on line 30: "Recovery rebate credit." If you didn’t receive the correct amount in your stimulus check in 2019, you’ll make those adjustments on line 30.

            COVID-19 continues its unchecked march of misery, with continued elevated counts and deaths, and a trail of severely weakened "recovered" individuals who face long term health challenges that will not be addressed by the prison medical system:: Talladega, 372; Ft Dix, 739; virtually every prison still has double-digit, and in many instances triple-digit infections, despite deliberate DOJ undercounts. Duluth has apparently blocked incoming legal mail and restricted computer access. Similar restrictions in place at Schuylkill.  Terre Haute has that, and no access to commissary, which appears to be a pattern in one form or other system-wide.

            Prisoners continue to be released, vaccine or no vaccine, so continue to marshal your medical records, and forge ahead.  I predict that this issue could gain new prominence after the inauguration.  However, do not neglect the possibility of relief via 2255 petitions, arguing inadequate representation of counsel, or petitions seeking relief under the First Step Act, as courts continue to reduce original sentences.       

            See: United States v. Hewlett, 2020 WL 7343951, at *2 (N.D. Ala. Dec. 14, 2020,) where a  prisoners at Talladega FCI, with a 924(c) mandatory minimum, who was 19 years old at time of carjacking, served 25 years, had brain disease, seizures, palsy, asthma, hypertension, was released ("The recent changes to the sentencing paradigm for Section 924(c) offenses instituted by the First Step Act create a strong disparity between Mr. Hewlett’s sentence and the sentences of those who have committed the same offense since the passage of the First Step Act"); also, United States v. Blanco, 2020 WL 7350414, at *2 (N.D. Cal. Dec. 14, 2020), where a prisoner at USP Terre Haute, serving a mandatory life sentence based on 851 enhancement, was released.

            Always seek good not evil, 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."

 

It's Official: Federal Bureau of Prisons Surrenders to COVID-19, Resorting to Disinformation, Censorship of Inmate Cries for Help;

 

Prisoners Eligible to Receive Second Stimulus Checks, and File to Get First Payments

Not Yet Received

 

by Derek Gilna

 

            First, the good news.   Prisoners ARE eligible to receive the second stimulus payment of $600. If you or your family already received the FIRST payment (and many successfully were received through the lockbox), you should get the second one without the necessity of doing anything else. If you DID NOT receive the first payment, for WHATEVER reason, you or your family should file, either electronically or via paper tax return, for a refund on your 2020 return (old deadlines do not apply) to reflect the both the FIRST payment and the SECOND payment. The second payment cannot be reduced for any reason, including unpaid child support.

            Now the bad news. It is self-evident that DOJ has effectively given up on effectively treating COVID-19, contenting itself to censoring emails and outgoing mail. Despite clear medical evidence that shuttling prisoners around the system and mixing positive and negative cases would spread infection of the highly-contagious virus, it did exactly that, overwhelming its own abysmal health care system, and forcing CDC and state national guard "bailouts" of its self-aggravated crisis. It continues to repeat these same mistakes system-wide.  It is time to treat this sad catastrophe like a crime scene, documenting each and every failure at your institution: names, details, and dates, and preserving evidence.

            There is  reports of the Pfizer vaccine being distributed in some of the medical centers, often to already compromised individuals, with mixed results. Remember, all medications have side-effects, but isn't it interesting that this has received zero media attention. Will this limited inoculations affect your pending or future Compassionate Release filings?   Not in the slightest (Read on).

            Mainstream medical researchers have identified what many of you already know, that even those who have technically "recovered" from the virus still don't feel right, and good luck getting those issues addressed in the prison system. This phenomenon, known as "Long Covid," is addressed in multiple journals.   Here is just one: Carfì A. Persistent symptoms in patients after acute COVID-19. JAMA. 2020;324(6):603–605. Having this condition increases your chances that your next contraction of the virus will find you in a weakened state, with higher chances of morbidity.  If you already are vulnerable, you have a much stronger argument for a Compassionate Release.

            Unfortunately, the federal medical centers appear to be the most recent epicenters of infections: Carswell, over 153 cases, many in the oncology and hospice units; Devans, 176, 4 deaths; Rochester, 315; FMC Springfield, Mo., 100+, 15 deaths; Pekin, 400+;  Ashland, 6 deaths; Gilmer, 125+;  Coleman, 100+; and many more.

            In the circuits: "(T)he district court's failure to advise (defendant) of Rehaif's knowledge requirement was clear error," finding prejudice, and vacating a guilty plea.

US v Guzman-Merced, 18-2145, (1st Cir. 12-22-20). Yet another favorable FSA resentencing case: "Assessments of motions under...404 must take into account o...Congress's intent to rectify disproportionate and racially disparate sentencing penalties.  Appellants have raised claims that are obviously with the remedial compass of FSA..." reversing and remanding a 1994 drug and conspiracy conviction. US v White, 19-3058, (D.C. Cir., 12-29-20). With all the deserved emphasis on CR matters, don't overlook possible motions to win resentencing based upon 404, as well as 2255s attacking inadequate representation of counsel.

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