CARES Releases Continue; Justice Reform Bills Wait their Turn in Congress

 

CARES Releases Continue: New Congressional Bills Filed as Reform Momentum Builds; New COVID Delta Variant Spreads; DOJ Personnel Shortages Threaten Programming and Sentence Credit

 

by Derek Gilna

 

            A random sampling of responses from various institutions  shows that there appears to be a direct correlation between individuals filing well-drafted compassionate release petitions in court, and CARES relief being granted. Although rumors are rampant that a "memo" exists for this new initiative, it has not yet been made public. However, given the low level of effective vaccination of prisoners, and the usual DOJ inefficiency in offering follow-up medical care for the previously infected,  a court petition would certainly be advisable at this time

            The quick spread of the new Delta COVID variant in the US is causing official  concern. According to the Associate Press, Tedros Adhanom Ghebreyesus, the head of the World Health Organization said the Covid-19 delta variant, first seen in India, is “the most transmissible of the variants identified so far,” and warned it is now spreading in at least 85 countries, including the US, where it has replaced the original COVID virus in many areas.

            Public-health officials say Delta is very risky to unvaccinated people. It is about 50% more transmissible than the current dominant U.S. strain, Alpha, which itself is 50% more transmissible than the most commonly circulating strain last year. "This variant represents a set of mutations that could lead to future mutations that evade our vaccines, and that’s why it’s more important than ever to get vaccinated now, to stop the chain of infections, the chain of mutations that could lead to a more dangerous variant," said Centers for Disease Control and Prevention Director Rochelle Walensky.

www.wsj.com;   6-23-21

            "The global situation is incredibly fragile,” said Maria Van Kerkhove, the WHO’s technical lead on Covid-19.“The delta variant, the virus, will continue to evolve,” he said. “Right now our public health and social measures work, our vaccines work, our diagnostics work, our therapeutics work. But there may be a time where this virus evolves and these countermeasures don’t.”www.ap.com. Needless to say, after-care in DOJ is non-existent.

            This, combined with the uncertainty of the long-term effectiveness of the vaccines, which were rolled out without the usual waiting period to determine the existence of any serious side-effects, means that federal prisoners are still at risk.

            The Biden administration endorsed legislation today that would finally end the federal sentencing disparity between crack and powder cocaine offenses, and close the book on one of the most destructive parts of Joe Biden's legacy as a senator.

Regina LaBelle, acting director of the White House Office of National Drug Control Policy, said in prepared remarks at a Senate Judiciary Committee hearing last week said that the Biden administration "strongly supports" eliminating the sentencing disparity between crack and powder cocaine. The EQUAL Act, a bill sponsored by Senate Majority Whip Dick Durbin (D–Ill.), Sen. Cory Booker (D–N.J.), and Sen. Rob Portman (R–Ohio)  would erase that sentencing disparity.

            A new study by the DOJ Inspector General (OIG) finds that the federal prison system is severely understaffed: " Nearly one-third of federal correctional officer jobs in the United States are vacant, forcing prisons to use cooks, teachers, nurses and other workers to guard inmates. The expanded use of that practice, known as augmentation, has been raising questions about whether the agency can carry out its required duties to ensure the safety of prisoners and staff members while also putting in place programs and classes required under the law." www.doj.gov. Staff shortages are nothing new, but Biden officials are increasingly disenchanted with the embarrassing lapses in institutional management, removing or reassigning multiple wardens and upper level staff, and reviewing the current director's performance.

            Based upon a deluge of complaints from prisoner families, multiple investigations are also ongoing, especially in one particular women's institution, long known for shoddy management, and poor medical care. Although the government (and DOJ) is known for minimizing the misconduct of its employees, this is one instance where some staff might pay the price.

            After the COVID-19 pandemic impacted prisons across the country, infecting hundreds of thousands of people and causing thousands of deaths, U.S. Senator Brian Schatz (D-Hawai‘i) today reintroduced the EMERGENCY GRACE Act, that would accelerate DOJ's approval process for compassionate release during a public health emergency. “People who are eligible for compassionate release are the most vulnerable to public health emergencies like COVID-19, and they are needlessly being put at risk because the process takes too long,” said Senator Schatz. “Our bill will help speed up the approval process so that sick and elderly who qualify for compassionate release get it.”

            In the circuits, In Broadway v. US, (10th Cir. June 22, 2021)  the court reversed a denial of a motion for reduction of sentence under First Step. Section 404 of the First Step Act "opened the courtroom doors" to these defendants to move for discretionary sentence reductions based on the retroactive application of the Fair Sentencing Act. The Tenth Circuit Court of Appeals found that although the remedial purpose of section 404 was clear, its language had not been interpreted uniformly. Because application of section 404(b) "should not vary from defendant to defendant," the Court concluded that before a district court exercises its discretion, "it should look to the drug quantity and Sentencing Guidelines associated with an eligible defendant’s offense of conviction, rather than his underlying conduct, to 'impose a reduced sentence as if . . . the Fair Sentencing Act . . . were in effect at the time the covered offense was committed.'” The district court did not do so here, so denial of defendant-appellant Jason Broadway's petition for sentence reduction was reversed.

            Be not afraid and let not your heart be troubled.

 

Federal Legal Center, Derek A. Gilna, JD, DePaul Law, 1975, Master of Restorative Justice (MARJ), 2020, Vermont Law School, Director, 113 McHenry Rd. #173,  Buffalo Grove, IL   60089, (and Indiana).dgilna1948@yahoo.com (emergency alternate: dagilna1948@yahoo.com); English and Spanish questions, and English language newsletter; federallc_esp@yahoo.com, Spanish newsletter; blogging at "Derek Gilna's Federal Criminal Justice Musings and Reflections."