COVID Threat Lingers in Federal Prison: BOP Encouraged to Do More CARES Releases as Safer Detention Act Advances in Senate

 

Happy Memorial Day;   Remembering Our Nation's Fallen Heroes; Case Updates

 

by Derek Gilna

 

            Let us take a moment to remember and respect our fallen men and women who fought for the ideal of America as a place of freedom, equality, and hope, as well as those who served and continue to serve.   In the eloquent words of one of my clients, "I wanted to wish you a good Memorial Day weekend and day of observance. Many people take this day for granted outside as a Barbeque day and/or day off, even in prison; its thought of as a 'holiday meal' day. As a prior service combat veteran, I take this observance day to heart. Not just for the men and women who gave their all, but for the people who still serve and veterans who served with them. We may not be gone, but we are also a memory that forever is engrained in hearts."

          In Congress, there were signs of progress as the Senate Judiciary Committee on May 28, passed  the COVID-19 Safer Detention Act, by a bipartisan vote. (It is NOT yet a law.)  This will reform and broaden the Elderly Home Detention Pilot Program and compassionate release from federal prisons. According to Chairman Dick Durbin, "This legislation will give judges the same authority to review (DOJ) decision for the Elderly Home Detention program as they have for BOP's compassionate release (CR) decisions, and make other important changes to ensure these programs are used to safely reduce prison populations and protect inmates, prison staff, and their families." The bill now advances to the floor of the Senate to await a vote, with none scheduled for now. I do not expect this bill to be voted on or become law until the infrastructure and voting changes are either decided or dropped.

         In anticipation to this likely change in the law, for the past several weeks I have encouraged you to file administrative remedies to protest the stingy grants of CARES releases for qualified individuals who have served a significant portion of their sentences, had a good prison record, diligently pursued rehabilitation, and have health challenges and known COVID risk factors. Congress is clearly not waiting for DOJ to act, and is intent on giving judges another tool to release prisoners who are initially denied CARES releases. If DOJ follows the bureaucratic pattern of avoiding judicial defeats  by increasing grants of relief, as happened after the deluge of  CR court filings, this will vastly increase the pace of releases.

        And why not? The DOJ's own statistics, now widely publicized to the general public, show that the miniscule few who have violated the terms of their early-release is virtually a rounding error. This would change the face of federal prison forever, in a good way. DOJ would be encouraged to prepare prisoners for release and reintegration.   It would also spare prisoners from the "deliberate indifference" school of medical treatment, masked by deliberate "under-reporting" of serious medical conditions that appears to be a common practice at several "medical facilities," some of which are under  investigation.                                                                                                                           

      I do not expect any US Supreme Court decisions this week; those with criminal justice implications will either be released by the end of June, or relisted for the October, 2021 term.   However, there are plenty of positive appellate court cases to consider.

           In US v Murphy, 20-1411, (3rd Cir. 5-27-21),  Murphy was convicted of distribution and possession with the intent to distribute heroin and 50 grams or more of cocaine base and conspiracy. With a career-offender designation, Murphy’s Guidelines sentencing range was 360 months to life, and he was sentenced to 360 months. He sought resentencing under Section 404(b) of the First Step Act. A PSR addendum preserved the drug amounts and the career-offender designation and decreased Murphy’s sentencing range to 262–327 months. He objected to the drug amounts and the career-offender designation, arguing that the jury had only specifically found that he was responsible for 50 grams of cocaine base instead of the 595 grams in the PSR and that Maryland second-degree assault convictions were no longer career-offender status predicates. The district court concluded that the First Step Act did not permit reconsideration of either factor and sentenced Murphy to 210 months’ imprisonment. The Third Circuit vacated. The district court correctly refused to reconsider Murphy’s attributable drug amounts but Murphy was entitled to an accurate calculation of the Guidelines range at the time of resentencing, including whether he qualified for the career-offender enhancement based on the law at the time of resentencing.

            In US v Spencer, 19-2685, 19-2691, (8th Cir. 5-27-21), the court reversed the  court's denial of defendants' pro se motions to reduce their sentences under the First Step Act, and explained that Section 404(a) of the First Step Act says that covered offenses are those whose penalties "were modified by section 2 or 3 of the Fair Sentencing Act." Before the Fair Sentencing Act, defendants' crack-cocaine quantity—over 50 grams—triggered a 10-year minimum sentence. It now triggers a 5-year minimum sentence. The court concluded that the "statutory penalties for" one object of defendants' multidrug conspiracy offense "were modified" by section 2 of the Fair Sentencing Act, and that the statutory penalties for a drug-trafficking offense include all the penalties triggered by every drug-quantity element of the offense, not just the highest tier of penalties triggered by any one drug-quantity element. Defendants are eligible for resentencing.

            In US v Cook, 20-13293, (11th Cir. 5-27-21), the court vacated the district court's denial of defendant's motion for compassionate release. Defendant contends that his conditions of hypertension, latent tuberculosis, and obesity, create a high risk he will fall seriously ill or die should he contract COVID-19 in the midst of the unprecedented global pandemic. The court concluded that the district court failed to demonstrate that it considered the applicable 18 U.S.C. 3553(a) factors in denying relief. The district court's order includes nothing to suggest it considered, balanced, or weighed any of the factors supporting the grant of defendant's motion. Accordingly, the court remanded the matter for further proceedings.

            As a new COVID outbreaks hits FCI Beaumont, there is a new study from Dr. Michael Cohen, MD, "Pandemic Medical Update: Vaccines, Variants and More, " which states that, "A study publish this month in Lancet Psychiatry analyzed mental illness and physical disorders o the rain and nerves during six months following recovery from COVID infection.   They found substantial numbers of people had a wide variety of medical and mental health disorders following OCIVD-19.   Overall, about 12% of people recovered...had a new diagnosis of a neurological or psychiatric disorder.  For those who had more severe disease, 26% had a new neurological or psychiatric diagnosis...This is very troubling information..." www.pln.com, May, 2021, page 40.

            From Senator John Kennedy of Louisiana: " Our country was founded by geniuses, but it's being run by idiots."

            Be not afraid and let not your heart be troubled.

Federal Legal Center, Derek A. Gilna, JD, MARJ, Director

113 McHenry #173, Buffalo Grove, IL   60089 (and INdiana)

dgilna1948@yahoo.com, (Spanish questions welcome)

Spanish newsletter: federallc_esp@yahoo.com

Blogging at:   "Derek Gilna's Criminal Justice Musings and Reflections"