Delta-Variant of COVID-19 Has Arrived in the Federal Prison
System; CARES Releases Should Continue Because of Systemic Failure In Prison
Medical Care, But Those on Home Confinement Should Consider their Options
by Derek Gilna
As the
various criminal justice reform bills move slowly through Congress, the Delta
Variant of COVID-19 has wasted no time, quickly arrived in multiple federal
prisons over the past month, including Aliceville, Bryan, and Waseca. This is in all likelihood, fueled in large measure by
unvaccinated correctional employees, especially in the South and West. Although DOJ will do its best to suppress the
information, the general public is already aware of the threat, as masks begin
to reappear even on vaccinated
individuals. This new development reality should soften the impact of the rumor
that CARES releasees currently on home confinement will have to return to
prison when the pandemic is "over." The fact is that the pandemic, at least in
jails and prisons, will never be "over."
All of
these health concerns somewhat lessened the concern about rumors that CARES will
be terminated and those already on home confinement will have to return, as was
rumored this week, but those concerns remain. If DOJ ends CARES there are two
options: either Congress can pass a law allowing these people to continue or
Biden can use his presidential clemency powers to commute their sentences.
Biden is now being pushed by a coalition of 20 criminal justice reform activist
groups to take action. I strongly urge those on home confinement to immediate
renew their compassionate release petitions to convert their CARES release to
a "time-served" outcome.
The current
COVID-19 surge in the U.S.
— fueled by the highly contagious delta variant — will steadily accelerate
through the summer and fall, peaking in mid-October, with daily deaths more
than triple what they are now. That's according to new
projections released Wednesday from the COVID-19 Scenario Modeling Hub, a
consortium of researchers working in consultation with the Centers for Disease
Control and Prevention to help the agency track the course of the pandemic.
npr.org; www.coronavirusmodelinghub.org.
"What's
going on in the country with the virus is matching our most pessimistic
scenarios," says Justin Lessler, an epidemiologist at the University
of North Carolina who helps run the
modeling hub. "We might be seeing synergistic effects of people becoming
less cautious in addition to the impacts of the delta variant." In the
most likely scenario, Lessler says, the U.S.
reaches only 70% vaccination among eligible Americans (it's now 60%), and the
delta variant is 60% more transmissible. In that scenario, at the peak in
mid-October, there would be around 60,000 cases and around 850 deaths each day,
Lessler says with about 240,000 people getting infected and 4,000 people dying
each day at the October peak, which would be almost as bad as last winter.
As noted by
correctional health expert, Cr. Homer Venters, "As the United States faces
a deadly new wave of COVID-19 infections, we must address the low
rates of vaccination among the nation’s half-million correctional officers.
Across the nation’s 7,000 jails, prisons and other detention settings, these
low rates threaten the lives of not only these staff and their communities but
also detained and incarcerated people. These low rates also reflect deeper
problems relating to the lack of attention to the health of correctional
officers and detained people alike by the Centers for Disease Control and
Prevention (CDC) and state departments of health" www.usatoday.com,
7-15-21.
William
Hanage, an epidemiologist at the Harvard
T.H. Chan School
of Public Health. "How (many new cases) will track with how many people
are vaccinated in a given community." "I also strongly suspect that
delta is highly prone to superspreading — if I am right, it might go off like a
bomb in some under-vaccinated communities," Hanage adds.
In every
report issued by the DOJ's Office of Inspector General, that office found major
deficiencies in all institutions' response to COVID-19, none of which have been corrected.
https://oig.justice.gov. . This level of medical support needed to deal with
the pandemic does not exist in the federal prison system. DOJ, Office of
Inspector General Review of FCOP Medical Staffing Challenges, at 1, (Mar.
2016).
There is
also reason for skepticism that even those vaccine administered to prisoners
were properly stored and handled (kept in special freezing units) prior to being given to prisoners, and whether
the prisoners to whom it was administered had been properly tested and examined
prior to the shots being given. It is
common knowledge that most of the prisoner shots were those that had been
refused by correctional employees.
This
institutional incompetence also does not bode well for those who continue to
suffer from "Long Covid," which even major hospital systems have had
trouble treating. Long Covid—a term referring to symptoms that linger for weeks
or months beyond infection—affects between 10% and 30% of people who catch
the virus, including those with mild or asymptomatic infections, according to
experts. In some cases, symptoms persist for more than a year. “Even if
it’s not as striking as people dying, you ignore it at your peril,” said Danny
Altmann, professor of immunology at Imperial College London. “In terms of
healthcare burden or healthcare cost, we’re on track for this being as big a
problem to us as rheumatoid arthritis, the biggest autoimmune disease in the
world.”
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The
majority of people with long Covid report fatigue as the dominant
symptom alongside muscle aches, difficulty sleeping and shortness of
breath, according to a large study by researchers at Imperial
College London. Another, smaller, cluster of patients reported predominantly respiratory
symptoms, including shortness of breath and chest pain or tightness.
Other studies have identified cognitive issues, or “brain fog,” as
another common symptom. www.wsj.com.
In
the circuits, US v. Brown, 20-2170, (8th Cir. 7-21-21), the Eighth Circuit vacated defendant's
72 month sentence for knowingly possessing a stolen firearm and remanded
for resentencing before a different district court judge. In this case,
defendant and the Government stipulated to a Sentencing Guidelines base
offense level of 12. However, the Government later endorsed the PSR's
contrary base offense level calculation of 20. The district court adopted
the PSR's calculation. The court concluded that if the government
breached the plea agreement in the case, a defendant may proceed with an
appeal despite an appellate waiver; defendant preserved the issue for
appeal; and the government breached the plea agreement. Even assuming a
cure is possible, other circuits require that the government offer an
unequivocal retraction of its erroneous position to sufficiently cure a
breach. The court explained that the Government's conduct is a far cry
from an unequivocal retraction. In this case, the Government's
half-hearted and begrudging statement that the district court should
follow the agreement was not enough.
In
US v Webb, 19-6491, (4th Cir.
7-19-21), the Fourth Circuit affirmed the district court's judgment
reducing defendant's sentence by two years, rather than the five years
that defendant requested. Defendant sought a reduction in sentence under
the First Step Act. The district court acknowledged that defendant had
come a long way since the imposition of his original sentence but that he
must take responsibility for his actions in a way that he failed to do
during his initial sentencing hearing. The court held that district
courts should be afforded significant discretion in addressing requests
for sentence reductions under the First Step Act. In this case, the
district court fully explained its decision to reduce defendant's
sentence by two years, considering defendant's arguments and the nature
of his offense, his characteristics, including both his post-sentencing
mitigation evidence and his criminal record, his new guidelines
sentencing range, and the new statutory mandatory minimum in fashioning
defendant's sentence. Therefore, the district court did not abuse its
discretion in sentencing defendant.
Be
not afraid, and let not your heart be troubled.
Federal Legal
Center, Derek A. Gilna JD (De
Paul Law, 1975), and MARJ (Vermont Law, 2020), Director, 113 McHenry Rd. #173, Buffalo Grove,
IL, and Indiana, dgilna1948@yahoo.com, for English-language newsletters
and questions in English and Spanish, federallc_esp@yahoo.com, Spanish
language newsletter only.
Blogging at "Derek Gilna's Federal Criminal Justice
Blog."
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