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."