Crack Resentencings in the Offing: Terry v US Supreme Court Case Will Require Sentence Reductions; "Long Covid" will Support Compassionate Releases

 

Terry v. US News: DOJ Will No Longer Oppose FSA Crack Resentencings; Amicus Appointed to Argue Against It; Impact of COVID-19 "Long Haul" Cases Will Support Additional Compassionate Releases

 

by Derek Gilna

 

            In a move that will have a major downward impact on the federal prison population, Biden's Department of Justice (DOJ) will no longer oppose the resentencing of crack defendants in the case of Terry v US, 20-5904, currently before the Supreme Court.   The high court took the unusual step of appointing counsel to defend the lower court decision opposing First Step resentencings. Under the circumstances, regardless of the decision of the SC going forward, if DOJ does not oppose your resentencing, it will accomplish the same goal.   I would be pleased to advise you if you are eligible for this relief.

            Those disappointed with the relatively few clemencies granted by the former president, many of which were pushed by groups allied with Jared Kushner, or former Aliceville prisoner Alice Johnson, the situation now could not be more different. Every advocacy organization has been invited to submit applications, and I would encourage you to do so, especially if you have served a substantial portion of your sentence, are non-violent, and have been serious about programming.

            Those concerned that the opportunity for a Compassionate Releases has been narrowed by the small number of vaccines administered to prisoners, your concerns are unfounded, especially given prison guards' reluctance to vaccinate. The prison pandemic has exposed the fraud of DOJ medical care to not only advocacy organizations, Congress,  but also the general public, and the DOJ prison bureaucracy is bracing for some major new oversight from Congress. Congressman Fred Keller, a Republican from Pennsylvania, announced the formation of the federal prison reform caucus,: "We understand that good, transparent government is not a partisan issue."  This is important because all members are young, aggressive, and less beholden to the powerful prison bureaucracy.

            Interestingly, the Correctional Officer Unions support the move, since they too were hung out to dry by Central Office during the pandemic, and their memberships suffered many COVID-19 deaths and infections.

            A new study of "Federal Facilities in the United States,"  finds that 36% of federal prisoners have been infected, a far higher percentage than the general population. It rates the DOJ COVID website as a D-, primarily  for significantly undercounting active cases. "CLA Law Covid-19 Behind Bars Project," UCLA Law School, 3-17-21.

            More and more studies and publications support the fact that even those who have recovered from COVID-19, also known as "Long Covid" patients, will suffer side effects for years, and require close medical attention and monitoring, a level of treatment non-existent in the federal prisons system. One physician noted that "individuals who had 'recovered' from COVID-19 had significantly damaged lungs, worse than those of life-long heavy smokers." Dr. Brittany Bankhead-Kendall, MD. "All the survivors and the people who have tested positive...is...going to  (have a ) problem," she said. CBS news, Dallas Fort Worth,  1-13-21.

            Another researcher said, "What we have found is that in some patients with COVID-19, the virus triggers an autoimmune reaction...the virus tricks the body into attacking itself," said Dr. Swati Deshmukh, asst. prof. at NW University School of Medicine, in "Skeletal Radiology, NW University, 2-17-21. "Imaging (CT, MRI, ultrasound) can help explain why someone might have prolonged musculoskeletal systems after COVID, directing them to seek the right physician for treatment, such as rheumatologist or dermatologist."

            On a different note, it is now clear that the level of DOJ access to cell-phone data, including location tracking,  and other computer-related tools, including programs that sort potential law enforcement targets based upon more offenses and known associates is much higher than realized. If you are engaging in illegality, your likelihood of arrest is extremely high. If you are about to be released, bear this in mind.

In the circuits, in US v. Mayweather, et al.   17-13547, (11th Cir. 3-17-21), defendants were corrections officers caught in an FBI sting operation for accepting bribes to smuggle contraband into prison. The Eleventh Circuit concluded that Williams and others were entitled to an entrapment defense jury instruction, the omission of which was reversible error. The court concluded that it was reversible error not to provide the jury with any definition of "official act" for purposes of the Hobbs Act extortion counts. Accordingly, the court reversed the Hobbs Act extortion convictions as to all four defendants and remanded for a new trial as to those counts.            In Bridges v. US, 20-1623, (7th Cir., 3-17-21),  Bridges sought post conviction relief, alleging he was denied effective assistance of counsel because his lawyer failed to argue that Hobbs Act robbery did not qualify as a “crime of violence.” At the time, there was no Seventh Circuit precedent on that issue. The district court denied relief. The Seventh Circuit reversed for an evidentiary hearing on defense counsel’s performance, joining other circuits that have concluded that Hobbs Act robbery is not a Guidelines “crime of violence.” Effective counsel would have considered this important question; minimal research would have uncovered a Tenth Circuit decision holding that Hobbs Act robbery was no longer a crime of violence under a 2016 amendment to the Guideline definition of a crime of violence.            The Lompoc prisoner class-action continues to move forward, although slowly, with the federal court in California has issued an injunction against DOJ to force it to comply with CDC guidelines. It includes  prisoners "with underlying health conditions, including chronic obstructive pulmonary disease; serious heart conditions such as heart failure, coronary artery disease, or cardiomyopathies; Type 2 diabetes; chronic kidney disease; sickle cell disease; Immunocompromised state from a solid organ transplant; obesity (body mass index of 30 or higher); asthma; cerebrovascular diseases; cystic fibrosis; hypertension or high blood pressure; Immunocompromised state from blood or bone marrow transplant; immune deficiencies, HIV, or those who use corticosteroids, or use other immune weakening medicines; neurologic conditions such as dementia; liver diseases; pulmonary fibrosis; thalassemia; Type 1 diabetes; and smokers." A good checklist.      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; blogging at "Derek Gilna's Criminal Justice Blog," Google blogspots.