Federal Judge in New York
Says MCC New York
"Run by Morons," Other News
by Derek Gilna
Manhattan
federal court Judge Colleen McMahon probably said what other federal judges probably
are already thinking, when she blasted the conditions of two notorious federal
jails in the city during a recent sentencing hearing — saying they are run by
"morons" who subject prisoners to disgusting conditions, according to
a court sentencing transcript. Wardens, she said, "cycle repeatedly, never staying for
longer than a few months or even a year," meaning no one is ever held
accountable for the systemic failures. "It is the finding of this Court
that the conditions to which she was subjected are as disgusting, inhuman as
anything I’ve heard about any Colombian prison, but more so because
we’re supposed to be better than that," she added. This should be required reading for all
federal judges who are of a mind to deny ANY petition for compassionate
release.
The fallout
from the disastrous appearance by the federal prison director at the
Congressional oversight hearing before the Senate Judiciary Committee in March
continues to reverberate. The
legislative-affairs arm of the Federal Public and Community Defenders recently
sent a letter to Chairman Durbin and Ranking Member Grassley that complained
that DOJ has yet to comply with the law to submit statistics on denied
compassionate release applications, has failed to address defects in medical
care, ignored clear errors in the PATTERN program, and instituted rules that are contradictory to the
First Step Act.
President
Biden extended the COVID-emergency rules to at least the end of December, so
that CARES Act releases can continue. The confusing memo sent out by DOJ on
CARES guidelines at the time of the March hearing, which purported to widen the
criteria for CARES releases, only increased the pressure on DOJ to do more
releases. Privately, this past week, the White House told
advocates that Biden is preparing to use his clemency powers to commute or
pardon incarcerated people.
Unfortunately,
COVID-19 still is roaming the federal prison system, even after the raw numbers
of new infections have dropped. Although
around 60% of the US
population has had at least one vaccine dose,
federal prisoners and prison guards vaccination rates are still under
60%. According to the CDC, even those prisoners who have "recovered"
are still at risk if they are immuno-compromised. "Older people or those
with compromised immune systems may not produce a sufficient immune response to
the vaccine leaving the body vulnerable said Davis Hirshwerk, ...infectious-disease
physician at Northwell Health System in Manhasset,
NY."
THE CDC has also warned about the continued risks of death by blood
clotting in COVID patients and a smaller percentage of those receiving one of
the three major vaccines, www.wsj.com, 4-16-21.
People are
still dying of COVID-19 in the federal prison system, nine since March 1, 2021,
and quarantines and lockdowns like the one at Devans, Hazelton (with at least 5
new positive tests) , and elsewhere.
"As many as 35% of those who become infected...will experience symptoms
over...six months after infection..., " according to the NY Times. Most
doctors have no experience is how to treat these patients, and there is little
doubt that the federal prison system is not equipped to handle the number of
prisoners still suffering.
The Wall
Street Journal said that the IRS has
"paper returns and envelopes containing checks piled up in trailers for
want of people to process them." Its advice: don't call the IRS,
understand the staff shortage, pay attention to any IRS
notice letters that you get, take appropriate action on them, and be patient.
The US Supreme Court of Terry v. US, 20-5904, was
argued the past week, wherein both the appellant and the US
agreed that "crack offenders sentenced under (b)(1)(C) have a covered
offense under Section 404. Statutory text, history, and common sense all compel
that conclusion. ...Because (b)(1)(C) cross-references (b)(1)(A) and (B), when
Section 2 raised the crack quantities for (b)(1)(A) and (B), Section 2 also
modified (b)(1)(C). That modification expanded the scope of conduct subject
only to (b)(1)(C), and it changed the sentencing benchmarks by which (b)(1)(C)"
can be modified. This will be an important opinion to watch for when it is
finally issued by the court.
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In US
v Owens, 20-2139, ( 6th Cir. 5-6-21),
the defendant was convicted of five counts of possessing or aiding and
abetting the possession of a firearm during a crime of violence (18 U.S.C.
924(c)), one carjacking, four counts of bank robbery by force or violence,
and being a felon in possession of a firearm. A single section 924(c)
conviction carries a five-year mandatory minimum sentence. Each subsequent
924(c) conviction then (2004) triggered an additional 25 years, even if those
convictions were part of a single indictment. Owens went to trial and was
sentenced to 1260 months. Owens’s co-conspirators pleaded guilty and were
sentenced, respectively, to 21 months, 33 months, 39 years, and 25 years of
incarceration. Owens filed for CR under 3582(c)(1), was denied, but the Sixth
Circuit reversed, directing the court to consider whether Owens’s
rehabilitative efforts and the lengthy sentence he received because of
exercising his right to a trial may, in combination with the First Step Act’s
changes, constitute an extraordinary and compelling reason for compassionate
release.
The
Seventh Circuit reached a similar conclusion in US
v Newton, (7th Cir. 5-4-21), where defendant moved for compassionate
release under 3582. He suffered from asthma, hypertension, and the use of a corticosteroid
increased his risk of CVI-related death. The district court denied, but the
appellate court remanded, stating that "when an inmate...presents individualized
arguments... (the) opinion must leave us assured that it considered those
individualized arguments and properly exercised its discretion...(and made
its) thinking clear."
But this
past Friday, a split Eleventh Circuit panel issued the first major ruling in
this area that breaks with the jurisprudence developed in these other
circuits. The majority opinion in US v. Bryant, No. 19-14267 (11th
Cir. May 7, 2021). denied
relief. The Second Circuit
back in September was the first circuit to rule in Zullo/Brooker
that district courts now have broad discretion to consider
"any extraordinary and compelling reason for release that a
defendant might raise" to justify a sentence reduction under 18 U.S.C.
§ 3582(c)(1)(A). Since then, there have been somewhat similar opinions
from the Fourth, Fifth, Sixth, Seventh, Ninth and Tenth Circuits generally
recognizing that district courts now have broad authority after the FIRST
STEP Act to determine "extraordinary and compelling" reasons that
may justify a sentence reduction when an imprisoned person files a
3582(c)(1)(A) motion. I would expect this issue to find its way to the
Supreme Court to resolve the circuit split.
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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 Musings and
Reflections."
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