Insiders Say Some Reform Bills Could Be Voted on Before the
End of the Year;
Supreme Court Considers Expansion of "Extraordinary and
Compelling" factors for
Compassionate Release Cases; DOJ COVID Follies Still Costing
Lives, and Institutionalizing
Suffering; Compassionate Release Not Just for
COVID; Appellate Updates
by Derek Gilna
Recent
progress on the Congressional "Infrastructure" and "Build Back
Better" bills has brightened the outlook for passage of the "Equal
Act" and the "First Step Implementation Act." The former, of
course, finally eliminates the Crack quantity sentencing penalty, and the
latter expands the reach of the First Step Act of 2018. Only four legislative
weeks remain before the end of the year, although these and other reform bills
could come up for a vote after the first of the year.
The U.S.
Supreme Court has added another case, Jarvis v US,
out of the 6th Circuit, which asks the question, " Whether non-retroactive
changes in federal law can serve as “extraordinary and compelling reasons”
warranting a sentence reduction under 18 U.S.C. § 3582(c)(1)(A)." Although
some courts have already granted relief on this basis, such a positive result
is by no means guaranteed, and a positive decision would results in many grants
of relief.
DOJ COVID
statistics and its credibility-challenged website continue to fail the
"sniff test." Even without
first-person reports, it is clear that the reported numbers do not compute,
based upon only common sense on how a contagious virus spreads. Due to staff
shortages in all institutions, guards often pull considerable overtime, and
come in contact with a lot of residents. How likely is it that the largest
federal prison in the Grand Canyon state has 27 staffers
ill with COVID and 0 residents, exactly the same status as Oakdale? Likewise,
Carswell, with 13 staff, and only two residents listed, and Aliceville with 5
staff and only one resident listed. These
results are is scientifically IMPOSSIBLE, given how contagious DELTA is. At
Aliceville, one overworked and ill guard transmitted the virus to upwards of 25
residents, who obviously came in contact with many others. Same with multiple
other facilities, like Coleman, and Terre Haute,
where the guards picketed on Friday. Even if these low prisoner counts WERE
accurate, why are over two-thirds of the federal prisons on "Red"
status, with scores of their prisoners "quarantined" in the SHU?
Even though
the DOJ censorship lid is screwed on tightly, news reports on DELTA cases and
deaths in prisons are making it into the newspapers. As one paper reported in Allenwood,
Pennsylvania, " (DOJ) Prisons reported
23 new active COVID-19 cases at the low-security unit in Allenwood on
Wednesday, pushing the active case count to 29 at the facility. In Wednesday’s
update, (it) registered 25 active inmate
cases and four staff cases."
https://www.dailyitem.com/coronavirus/23-new-covid-cases-at-federal-prison-in-allenwood.
And in
Texas, yet another death at Beaumont (at least the second this year), and one
which points out the danger of being "recovered" while symptoms of
"Long Covid" are ignored, not to mention the usual slipshod medical
treatment and diagnosis of potentially life-threatening conditions. Robert
Hatchell tested positive for the novel coronavirus and was immediately placed
in medical isolation in late 2020: “In accordance with Centers for Disease
Control and Prevention (CDC) guidelines, Mr. Hatchell was converted to a status
of recovered, following the completion of medical isolation and presenting with
no symptoms,” DOJ said. He later complained of severe abdominal pain, and died
in the hospital he had "long-term, pre-existing medical conditions, which
the CDC lists as risk factors for developing more severe COVID-19 disease."
https://www.beaumontenterprise.com/news/article/Second-senior-COVID-recovered-federal-inmate.
There are also continuing problems at Tallahassee:
"13 women in our unit tested positive... 32 in quarantine and isolation...one
on a ventilator and other 2 sent to hospital."
There are high
numbers of vaccinations listed on the DOJ website, "258,708 doses
distributed, 239,008 administered." However, once again, the numbers do
not add up. That means that almost 75%
of prisoners have been vaccinated, and if you add the numbers of recovered
prisoners, which is estimated to be upwards of 25,000 (a conservative figure),
why are people still getting sick?
The short
answer is: "unvaccinated guards." A federal COVID-19 vaccine mandate
takes effect November 9th but many prison employees remain unvaccinated.
According to the most recent BOP data, 360
employees and 1,917 inmates have been fully vaccinated at Terre
Haute. When the world was just learning about the
coronavirus a year and a half ago union leaders said there was a lack of
personal protective equipment and tests to keep people working at the prison
safe. Harold Smith is the AFGE Local 720 president., and represents 585 out of
705 Terre Haute Federal Correctional Complex employees. Smith said, "I
think basically it comes down to distrust a lot of times. This is the most
publicized vaccine in the history of modern medicine."
The US
has 330 million people, with 40 under the age of 12, who have not shown to be
susceptible to dying from COVID or DELTA. 750, 000 have died from COVID. There have been 419 million (professionally
administered) vaccine doses, and 45
million have recovered from either COVID or DELTA. www.cdc.com. Draw your own
conclusions.
New data from the CDC appears to show that even
vaccinated older people are at risk. "Age is our top risk factor for
vaccine breakthrough deaths,” said Theresa Sokol, the state epidemiologist in Louisiana,
one of the jurisdictions that contributed to the CDC data. Breakthrough deaths
among seniors may be because of immunosenescence, or the weakening of the
immune system in older people, said Heather Scobie, a public health researcher
at the CDC who helps lead the team that produced the new data. “They don’t
usually form as robust a response to vaccination,” added Scobie. “Hopefully the
booster dose for ages 65 years and older will address that issue.” www.nyt.com.
This is an EXCELLENT argument to refute DOJ statements that ppeople who are
vaccinated are not at risk of death from DELTA.
The well-funded, nationwide ACLU has done much of the
heavy lifting regarding class actions and document requests from DOJ on its
ineffectual COVID response. So far, DOJ has only released just a few of discovery
documents, which will be made public, hopefully in the near future.
In a seeming unrelated, but actually quite relevant trial
starts today in Arizona, after a
federal judge threw an ACLU and state of Arizona
prison health care settlement after the state failed to comply with its terms
for over 10 years. The facts in this case closely parallel federal prison health
care issues, so I will be watching this closely to see if it can be used in
federal lawsuits. Parson v. Ryan, 2:12-cv-00601-ROS,
USDC, D of Arizona.
Compassionate Release is NOT just for COVID. Some of you
may recall the case of Michelle McGee,
the former Pekin, and finally,
Carswell resident, who fought a long battle with non-smokers lung cancer. (This disease is especially deadly in
females 30 to 60, the disease can strike anyone with lungs, regardless of whether
you have smoked or not. ) Michelle showed symptoms of the disease for well over
two years, and we filed for CR for her when even online, I was able to recognize
symptoms of lung cancer, file a CR, and get her released. The pandemic made a
poor health system even less responsive, so you must truly be alert to chronic
conditions. It is an open secret that DOJ medical staff has a nationwide policy
of understating health problems, so scrutinize your records carefully, as the
US Attorney will cite the lack of medical proof to argue for denial of your CR
petition. Those with hypertension who have stroke risk should also consider
filing a CR.
In the circuits, the USDC
for the So. D. of WV published an opinion in December of 2020, which states
that the "offense of conviction" does NOT include relevant conduct
encompassing an overdose death, for purposes of calculating a base offense
level. US v. Kimble, 2020 U.S.
Dist. LEXIS 237529 (Dec. 17, 2020.) The 11th Circuit has held that a district
court order denying CR must still demonstrate that it had considered the
applicable factors under 19 U.S.C. Section 3553(a). US v. Cook, 998 F.3d 1180
(11th Cir. 2021). In the 4th Circuit, the court has held that a RICO Conspiracy
is not a "Crime of Violence" for purposes of Section 924(c):
"both generic and aggravated RICO conspiracies are not crimes of violence
under 18 USC Section 924(c)(3)(A). US v.
Simmons, 2021 U.S.
App. LEXIS 26399 (2021).
Be not
afraid and let not your heart be troubled.
Derek Gilna, Director, JD, MARJ, Federal
Legal Center,
113 McHenry Rd. #173, Buffalo
Grove, IL
60089 (and Indiana)
dgilna1948@yahoo.com
(English newsletter and ALL inquiries,
English or Spanish)
federallc_esp@yahoo.com, Spanish newsletter, but NO
inquiries.
Blog: "Derek
Gilna's Federal Criminal Justice Musings and Reflections."
