Bureau of Prisons Finally Releases new CARES Act Memo, after Sending It To the Prisons Without Releasing Contents to the Public

 

DOJ Finally Releases Previously Leaked Changes to CARES Act Criteria; Other Updates

 

by Derek Gilna

 

            After several days of uncertainty, DOJ finally publicly released the updates CARES Act guidelines to be followed by wardens and prison staff in deciding release eligibility.  Some of the highlights include; limiting disciplinary disqualifications  to only those that occurred in the past 12 months; requiring a verifiable release plan; excluding those with sex offenses and detainers; giving priority to low and minimum security and PATTERN scores; having vulnerability to COVID-19 due to medical conditions.   It also lowers the sentence  completion threshold to 25% from 50%, and also makes eligible those with less than 18 months left on their sentences.

            Why the sudden change of direction? Compassion?   Common sense? Hardly.

The rough handling of the Director of the federal prison system the past week reflects a mood in  Congress that can best be described as "fed up with COVID-treatment incompetence." Unfortunately, with the policies and personnel currently in place in the prison system, that incompetence will not suddenly go away. Thus, Congress is requiring not only a relaxation of release standards, but a regular report as to how many prisoners are being processed under the program. The apparent  thought is that a federal prison system with less than 100,000 prisoners might work more smoothly. However expect DOJ to mistakenly classify some prior offenses as violent, like 924C, which they are not.   If this happens or other similar misclassifications happen, you MUST start the BP process as a precondition to filing a lawsuit that will get you on track for release.

            DOJ is not just guilty of a lack of transparency on an important matter of public concern, but is actually providing misleading information about what the current home confinement criteria are right now. Misleading information about home confinement criteria is not just problematic for persons in federal prisons and their families who might think they ought to be eligible for home confinement.  It is also problematic for federal judges around the country who are considering compassionate release motions and who might be influenced by the new home confinement criteria in their decision-making. 

            After fielding many complaints about missing Stimulus checks, I remind you that the first check can be held for child support and other liens, but the second and third should not be.   However, there is a little-used provision that permits amounts in your account above $450 to be attached. The biggest problem, however, is that the IRS is late on processing ALL checks, not just those for prisoners, whose checks are not segregated by status. If you have outside contact to receive the check, use that, or the lockbox.   Getting checks mailed to the  prison is a recipe for disappointment.

            COVID-19 cases, including both new and continuing cases,  are continuing to take a toll in the federal prison system. The NY Times has noted that only slightly more than 50% of prison guards have been vaccinated. Coleman and Milan continue have new cases, and Ashland was recently locked down for COVID reasons.

             Michigan continues to be a hotspot while cases drop in other states and regions with more vaccinations taking place. "Public health experts say the outbreak – driven by the B.1.1.7 variant of the virus, which is more contagious and more severe – is spreading rapidly in younger age groups. And across the state, doctors and nurses are increasingly reporting a concerning trend: Younger patients are coming in more often with serious cases of Covid- 19. 'I am putting more patients in their 20s and 30s and 40s on oxygen and on life support than at any other time in this pandemic'” said Dr. Erin Brennan, an emergency room physician in Detroit." www.buffalonews.com, April 26, 2021.

            Yet another article argues that "Long Covid" cases are being minimized by individuals who wish to dismiss it as psychological in origin. "Resulting from COVID-19 infections, the emerging postviral syndrome is poorly understood.   Patients suffer from symptoms such as fatigue, brain fog, and shortness of breath long after clearing the infection." The National Institute of Health agrees, and  invested $1.5 billion in researching the issue. www.wsj.com, 3-31-21, page A19.

Courts continue to grant sentence relief. In US v Combs, 18-6003, (6th Cir. 4-22-21). Combs pleaded guilty to participating in a cocaine distribution ring. The court initially held that Combs’s Kentucky trafficking offense was categorically qualified as a “controlled substance offense” under the Guidelines; U.S.S.G. 4B1.2 and Combs’s designation as a career offender. Combs was sentenced to 188 months’ imprisonment due to his career-offender status, U.S.S.G. 4B1.1. The court rejected Combs’s argument that distribution requires a commercial aspect. In an amended opinion, the Sixth Circuit cited intervening circuit precedent and reversed the career-offender finding for Combs. Conspiracy to distribute controlled substances is not a controlled substances offense under U.S.S.G. 4B1.2(b).                US V. McCoy, 17-3515, (2d Cir. 4-22-21). Defendants McCoy and Nix appealed their convictions for charges related to their involvement in a series of home invasions .and theft of commodities that had been shipped and transported in interstate and foreign commerce. The court agreed that their firearm-brandishing convictions should be reversed on the ground that none of their Hobbs Act offenses are predicate crimes of violence under 18 U.S.C. 924(c); reversed and remanded.             In US v Mayhew, 19-6560, (4th Cir. 4-19-21), concerned a white-collar case where defendant received 26 years.   In his 2255, he argued that his lawyer had guaranteed him that if he went to trial he would receive at most 5 years, and thus he rejected a plea from the government. He also alleged that his lawyer's incorrect sentencing calculation also affected his guideline range. An evidentiary hearing was granted.          In US V. Kirchner, 20-1304, (3d Cir. 4-22-21), the court vacated and remanded a white collar case where a dealer in coin replicas was indicted and convicted of counterfeiting and misleading customers. The Third Circuit vacated Kirschner’s 126-month sentence. While the district court was within its discretion to apply the abuse-of-trust and use-of-sophisticated-means enhancements, it clearly erred in applying the 22-level enhancement for loss, and the error was not harmless. While the court focused on what Kirschner intended to do with the high-value counterfeits, it never found that the government proved, by a preponderance of the evidence, that Kirschner intended to sell the coins as counterfeits (not replicas) for the prices the government claimed.           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, Ill 60089 (and Indiana) dgilna1948@yahoo.com; "Derek Gilna's Criminal Justice Musings and Reflections."

BOP Director Grilled by Congress on COVID-19 Failures, Hints at Possible Releases

 Has DOJ  Relaxed Internal 50% Rule Requirement for CARES Release? 

 Mixed Signals Confuse Prisoners, Staff.

 

by Derek Gilna

 

            A press release by a respected prisoner advocacy organization electrified  prisoners and their families in the past week by stating the following: "We’re grateful that that the new administration heeded the widespread calls to make more people eligible for home confinement...The original criteria were too narrow. These changes will protect vulnerable people in federal prisons."

            Great news, if it is true.  There is one small problem: no official memo has been released to the public as of today, so it remains officially "Unconfirmed.".

            Despite this confusion, there is a lot of good news to report. Senate Judiciary committee members this week grilled the federal prison director on a variety of significant issues. Some of the highlights: (1. DOJ has NO  immediate plans to send thousands of inmates released to home confinement during the COVID-19 pandemic back to prison. "We're going to use good judgment and common sense and work within the law," and not "arbitrarily" disrupt peoples' lives by forcing them to return to prison.  Senators noted that only three (3) people released on home confinement have been rearrested. (2. The director confirmed that the state of emergency needed to continue CARES releases was extended by the President. (3. Senators blistered the director for continued COVID prison outbreaks and pressed him to do more to release medically-vulnerable prisoners, authority that DOJ already has.

            4. Senator Charles Grassley of Iowa noted that the notoriously opaque agency has not responded to his one-year old letter of inquiry, and chastised the agency for what he called the misinterpretation of the spirit of the First Step Act's  PATTERN program, saying that it was unduly restrictive. He promised further review of PATTERN implementation. 5. Finally, both Grassley, a Republican, and Richard Durbin, a Democrat and Chairman of the committee, presented a united, bipartisan front in holding the agency accountable.

            The non-partisan Marshall Project said that the federal prison system, "remains opaque, having failed to report (COVID) positive tests and deaths, despite being responsible for more infections than any state prison system, and has no required testing or reporting of rate of infection for guards. 'People who work in prisons are an essential part of the equation that will lead to reduced disease and less chance of renewed explosive COVID-19 outbreaks in the future,' said Brie Williams, a correctional health expert at the University of California, San Francisco (UCSF).' tps://themarshallproject.us. However, at Bryan, more than 50% of staff have refused vaccinations.

            And the deaths continue to pile up. Most recently, two prisoner died  at MCFP Springfield, and one each at Ft. Dix, FCI Talladega, FPC Florence, and FCI Oakdale.

Others, like Coleman and Tallahassee, continue to suffer new cases, and the aftereffects of having "recovered" from COVID. FMC Rochester has two new cases, as well as hundreds of prisoners still suffering the after-effects of having been infected with COVID.

            Approximately 5,800 fully vaccinated Americans — out of 66 million who received the shots — still became infected ... according to the Centers for Disease Control and Prevention in data reported Thursday. People who are older or those with compromised immune systems may not be able to launch a robust immune response to the vaccine and build up enough antibodies to ward off infections, doctors explained. www.cdc.com. www.wsj.com, 4-16-21.

            I have my own opinions regarding the adequacy of treatment for COVID. Having been forced into close contact with medical professionals for many years on behalf of friends and family, I learned to ask blunt, specific, and embarrassing (annoying?) questions regarding what they know and do not know, and came to this conclusion: doctors DO NOT have all of the answers, especially when it relates to a new disease like COVID. Although there has been much research done on COVID, much remains to be learned. The reason that the usage of the Johnson and Johnson vaccine was temporarily paused, was not that it is any more dangerous than any other vaccine, but that the CDC felt it needed at least a week to educate medical professionals to make sure that they knew how to recognize and provide the proper treatment for very rare blood clotting side effect (6 confirmed cases out of millions of doses.)  If you do not have an allergy to vaccines, take the shot if offered.  Little attention has been paid to the long-term impact of Covid-19 on people of all ages who may be called survivors but who may need long-term health care or other support. Associated Press. “It’s important for us to say we don’t know. We don’t how to care for these people in the long-term,” said Dr. Dan Fagbuyi, a pediatric emergency medicine physician in Washington, D.C., and a former member of President Barack Obama’s National Biodefense Science Board, which handled public health emergencies involving Ebola, H1N1, Anthrax and other crises. “We really have to consider that. The U.S. health system simply isn’t prepared for the task of matching resources to the vastly complex and varying needs of the patients," said Dr. Robert Klitzman, professor of psychiatry at the Joseph Mailman School of Public Health at Columbia University in New York City. “These are patients that have needs that are only going to increase, and we need to be aware of them and begin to plan for them as early as possible,” he said.www.buffalonews.com, April 21, 2021.

            Unfortunately, the built-in medical treatment limitations in the federal prison system essentially means that serious life-threatening conditions-as well as COVID-often go undiagnosed, and untreated, resulting in death. FMC Carswell recently suffered yet another death from an untreated hernia which burst.

            Prisoner stimulus checks continue to be coming in slow for many. A federal judge issued a nationwide injunction ordering the processing of these checks, requiring all prisons to cooperate in their receipt and distribution.   However, remember that paper returns take longer to process. The first payments COULD be held for past-due child support, but not the second or third.   If you got the first two payments, you should automatically get the third. However, wait a month before re-filing a 2020 1040 for the most recent payment, since many checks and payments have not yet arrived for even people on the outside. Unless you have a secure home address, get the payment sent to the lockbox, not the prison address.   Do you want that guy in the prison mailroom handling your check?

            Federal Courts continue to grant First Step sentence relief for Compassionate Release, "Stacking" convictions, and reversing denials based upon 1B1.13(2) denials. US v Aruda, 20-10245, (9th Cir. 2021) 1B remand for resentencing; US v Maumau, 20-4056, (19th Cir., 2021) "stacking" relief affirmed; US v Russell, 19-12717, (11th Cir. 2021), CR granted. I strongly suggest that you also consider filing a clemency petition-we can help.

            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,  for questions in Spanish; Spanish newsletter at federallc_esp@yahoo.com, blogging at "Derek Gilna's Criminal Justice Musings and Reflections."

           

Sentence Relief Continues to Be g=Granted by Federal Appellate Circuits; Prison COVID Updates; Pell Grants for Prisoners

 9th Circuit Joins 4th, 5th, 6th, 7th, and 10th In Extending First Step Act 3582 (c)(1)(A) Relief; Prisoners Can Get Pell Grants; DOJ Botches Prisoner COVID-shot Rollout

 

by Derek  Gilna           

 

            While Congress battles over trillion-dollar infrastructure proposals, another federal circuit has provided an additional path to sentence relief.  US v. Aruda, No. 20-10245 (9th Cir. April 8, 2021: "Aruda appeals from the district court’s order denying her motion for compassionate release under 18 U.S.C. § 3582(c)(1)(A)(i).  We hold that the current version of U.S. Sentencing Guidelines Manual (“U.S.S.G.”) § 1B1.13 is not an' applicable policy statement issued by the Sentencing Commission' for motions filed by a defendant under the recently amended § 3582(c)(1)(A).  Because the district court relied on U.S.S.G. § 1B1.13, we vacate and remand so that the district court can reassess Aruda’s motion for compassionate release under the correct legal standard...." 

            This followed the decision in US v. Shkambi, No. 20-40543 (5th Cir. April 7, 2021). "The question presented is whether the U.S. Sentencing Commission’s compassionate-release policy statement binds district courts in considering prisoners’ motions under the First Step Act (“FSA”). The district court said yes and dismissed Francesk Shkambi’s motion for lack of jurisdiction. That was wrong for two reasons. First, the district court did have jurisdiction. And second, the policy statement is inapplicable. We reverse and remand...."  These motions are NOT limited to only those individuals with chronic medical conditions that could be aggravated by COVID.                                                                     

          Prisoners will now be allowed to apply for federal student aid in the form of Pell grants after Congress rescinded a ban in place since 1994, PBS reports. The $1.4 trillion government spending bill Congress passed along with coronavirus relief includes a measure that restores Pell grant funding for those who are incarcerated in state and federal prisons.                                                                                                                        

          Unfortunately, it appears that more people who received the Moderna COVID-19 vaccine reported side effects than recipients of the Pfizer shot, according to a recent study for the Centers for Disease Control and Prevention released in the online journal JAMA. https://javajournal.com. According to analysis of reports from over 3 million vaccine recipients by the CDC, almost 70% of those who received the Moderna vaccine said they experienced an adverse reaction at the injection site such as pain or swelling, while about half reported side effects like chills or fatigue ."A greater percentage of participants who received the Moderna vaccine, compared with the Pfizer-BioNTech vaccine, (and) this pattern was more pronounced after the second dose," the researchers noted. www.cdc.com.   

                "The public understandably has been concerned about reports of rare, severe allergic reactions to the Moderna and Pfizer-BioNTech COVID-19 vaccines," said Dr. Anthony Fauci, the director of the National Institute of Allergy and Infectious Diseases, in a statement on Wednesday.        In data taken from Dec. 14, 2020 to Feb. 28, 2021, about 74% of Moderna recipients reported an adverse reaction following a single dose, with 82% reporting side effects after the second dose, compared to 65% of Pfizer recipients after the first dose and 68% after the second.  Of course, the main concern for prisoners is that they will not receive proper care from prison medical personnel, nor have the opportunity to obtain over-the-counter mediation to deal with the symptoms."    

             The National Institutes of Health recognized the issue of adverse reactions by announcing this week that it will conduct a clinical trial of allergic reactions to the COVID-19 vaccines from Moderna and Pfizer, specifically "to determine whether people who are highly allergic or have a mast cell disorder are at increased risk for an immediate, systemic allergic reaction" after receiving either vaccine.

            Many now accuse DOJ of quietly conducting numerous herd-immunity  experiments during the COVID-19 outbreak by mixing positive and negative prisoners. This follows on the heels of more accusations that Federal prison officials withheld more data about COVID-19 behind bars. Last month it removed from its coronavirus count prisoners who had tested positive but who have been released. This month the DOJ lowered the number of deaths it is reporting among people held in private prisons. COVID-19 and its new variants are still impacting many prison facilities.   From Coleman Low in Florida, we hear that there are 51 new cases, with 24 in quarantine in SHU, 31 in the chapel, with all 4 buildings locked down. From the women's facility in FCI Tallahassee, where one prisoner shared her diary from late February to the present. Although the virus appeared to have receded, she started having symptoms of no smell, no taste  dry cough, sweat, and nausea. Soon her whole unit was sick. "The officers don't even come and check on us, at all," she wrote. At least one lady, she said, "had some problems with her kidneys and other medical complications going on that this place wouldn't take care of." She caught Covid and is now in a hospital on a ventilator.

            Fewer than 20% of federal and state prisoners have received a COVID-19 shot, a new tally reveals. Complicating the equation are concerns about prison staff refusing vaccines in high numbers. Unlike prisoners, staff can receive vaccines from providers other than the corrections department, which can make staff levels difficult to track. Staff vaccination is particularly important, said Monik Jiménez, an assistant professor at Harvard University’s School of Public Health, because employees can travel between prisons and the outside community. She stressed that both staff and prisoners need high vaccine coverage in order to effectively reduce COVID-19 transmission. 

         Concern continues that COVID persists in the nation's jails and prisons and will continue to fuel infections in the surrounding communities. Assessing the relationship between imprisonment and the disease caused by the novel coronavirus is the subject of a December 2020 report by the Prison Policy Initiative (PPI), a nonprofit, non-partisan advocacy group dedicated to exposing the harmful effects of mass incarceration.

         The answer they found was shocking: From May 1 through August 1, 2020, there were 566,804 infections that could be traced to correctional facilities in the U.S.

         This estimate dwarfs the number of cases reported inside correctional facilities, which a database maintained by The Marshall Project estimated  around 68,000 during the three-month period. www.prisonpolicyinitiative.com.  

          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; blog at "Derek Gilna's Musings and Reflections."                                                                         

Biden Sentence Relief Initiatives Delayed to Make Way for Infrastructure Bill

 

Sentence Relief Delayed While Infrastructure Bill Takes Center Stage; Pace of First Step Act Relief Accelerates; Some Observations on the Federal Prison System

 

by Derek Gilna

 

            First it was the Stimulus Bill that monopolized Congressional attention. Now it is the prospects of a multi-trillion dollar "Infrastructure" bill (which has not even been written or filed) that has captured the short attention spans of federal lawmakers. Thus, it appears for at least the moment that sentence relief legislation currently sits in Congressional committees, waiting for the leadership okay to advance these bills for a vote.   Obviously, when that takes place, and the bills pass,  Biden will sign them immediately. 

            For impatient readers and their families, understand that these sentence relief bills will make profound changes to the federal criminal justice system, reflecting the same changes already happening in the states. In my opinion, even a few of these changes will reduce non-immigration federal prisoner counts by at least a third.

            Sentence relief cannot be separated from the reality of American politics. Where are most of the federal prisons located? In Southern states, by a wide margin, established in the area when it was solidly Democratic and Democrats controlled Congress.   Why does West Virginia have so many prisons? Politics, pure and simple. However, given the reorientation of the Democratic party as one of coastal elites, select favored minorities,  and public employee unions, it needs to re-engage and attract minority votes. The fact that most federal prisons are located in solidly Republican states (other than California), means that there would be only a minimal  political price to pay for reducing prisoner counts.

            If you are looking for quick reform to somehow come from within in the DOJ-run and largely unaccountable federal prison system, you will be disappointed. Congressional action, and the stated preferences for reform of the new president will make "reform" irrelevant, by robbing the system of its "customers."  Only when the system returns to its pre-Drug War population levels  will you see improvement.

            One of the other ways that the system will be reformed is by the President taking advantage of his unlimited pardon and clemency power. The rumors of a broad-based clemency occurring sooner rather than later will not go away, and I again encourage those of you who wish to do so to start the clemency process. These things have a way of not moving for a long time (remember First Step?) and then moving very quickly, so best to get your place in line for at least a chance at relief. Biden designated April as "Second Chance Month," to once again reemphasize his commitment to sentence reform and doing more to assist the successful reentry of releasing prisoners.

            And what of the scandal of prison health care?   Many prisons are located in rural areas, far from the areas where qualified physicians and medical staff want to live and raise their families. Many current medical employees have sketchy pasts, and are employed at a prison because that is the only job they can get. Many of them actively conceal the system's incompetence by falsifying medical records, a federal offense. Prisoners fight to receive off the shelf batteries to run necessary medical devices. Transferred prisoners are denied their proper medication and C-PAP machines in new institutions.  For what purpose?  

            In this era of technological advancement, why shouldn't the prison system  consider the possibility of telemedicine, where prisoners can consult with true medical experts via video link in the all-important diagnostic stage? This would reduce staff to the role of dispensers of medication, and save taxpayers millions.  We were able to get compassionate release for a cancer patient who complained of her symptoms for many months while she was isolated by officials using the COVID excuse.    She is now at home with her family.

            In this era of universal surveillance and data-tracking, as well as numerous instances where defense attorneys and advocates have been surveilled in "secure" legal phone calls and other communications,  the National Association of Criminal Defense Lawyers (NACDL) and Berkley Law has sued the federal government for this breach of ethics. In February, the House of Representatives overwhelmingly approved the Effective Assistance of Counsel in the Digital Era Act by a vote of 414 to 11. In the meantime, understand that there is NO secure communication in any form in prison.

            This would also be an appropriate place to reemphasize the federal government's robust computer-diagnostic tools which effectively track ALL prior convictions and arrests, and have institutionalized the use of CI's to pinpoint attractive, slam-dunk prosecutions, instead of relying on old-fashioned police work.   (After January 6, the federal government begged for assistance from social media to identify potential suspects,  which it used to initiate its usual publicity-rich, low evidence, prosecutions which currently are the top priority of local federal prosecutors.) Why are most new arrests former prisoners or those on supervised release? They are the low hanging fruit in the algorithm-driven federal prosecution network. Once you are in the computer system you are never removed, even if you are done with supervised release.

            COVID-19 is the uninvited guest who refuses to leave. While the federal prison system emphasizes the number of "recovered" prisoners after its apparent policy of forced exposure, apparently to build "herd immunity," COVID continues to pop up over the entire federal prison  system. To name just two, Coleman Low is almost in complete shutdown, with serious cases, some requiring intubation in local hospitals  Aliceville is in a new lockdown to suppress the spread there.

            The symptoms of "Long COVID," ignored by DOJ,   will receive a $1.5 billion dollar grant for further study, according to the Wall Street Journal posted on April 2, 2021. One "recovered" COVID prisoner noted, "I am still experiencing...swelling and numbness in hands,...feet and legs., regurgitation of any food I consume, ..like acid reflux, a condition I...never...suffered from, overheating and profuse sweating and fatigue...constant congestion (in) my chest and (a runny) nose...(and) constant diarrhea." Treatment given: zero.  These facts mean that Compassionate Releases are very much an option, provided that they are well-documented, and well-pleaded.

            We also reemphasize the use of 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.”   See US v. McDonel, No. 07-20189 (ED Mich. Jan. 13, 2021), and  

US v. Nafkha, No. 2:95-CR-00220-001-TC (D Utah Jan. 11, 2021).   These cases show that "stacking" sentences can be successfully attacked by well-drawn motions. Note that pre-2010 crack cases are entitled to resentencing, while Congress mulls reducing the ration to 1 to 1 from 10 to 1.  

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

Federal Legal Center, Derek A. Gilna, JD, MARJ (Master of Restorative Justice),Director

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

federallc_esp@yahoo.com for Spanish newsletter; dgilna1948@yahoo.com for questions in Spanish and English (dagilna1948@yahoo.com-backup address);

"Derek Gilna's Criminal Justice Musings and Reflections," on Google blogs.