BOP Director on the Way Out? Who Will Be Held Accountable for BOP COVID Disaster?

 

DELTA Spikes in Minnesota and Michigan, and Persists Elsewhere; Congress Recesses for Thanksgiving; DOJ Inspector General Blasts Prisons for not Implementing Time Credits Until January; Durbin Calls for Prison Director to be Fired; Appellate News

 

by Derek Gilna

 

            So for those judges who think that being vaccinated defeats the  "extraordinary and compelling circumstances" path to relief, think again. You already learned here that that CDC found that 70% of vaccinated federal prisoners in a Texas federal prison still caught COVID. "Of 185 fully vaccinated prisoners at the unnamed prison, 129, or about 70%, caught the virus," said the CDC. "This was a much lower rate than the unvaccinated prisoners, 39 of 42 of whom - or about 93% - caught COVID-19 during the outbreak," said the study, published Tuesday in the CDC's Morbidity and Mortality Weekly Report. Hagan LM, McCormick DW, Lee C, et al. "Outbreak of SARS-CoV-2 B.1.617.2 (Delta) Variant Infections Among Incarcerated Persons in a Federal Prison — Texas, July–August 2021." MMWR Morb Mortal Wkly Rep 2021;70:1349–1354. DOI: http://dx.doi.org/10.15585/mmwr.mm7038e3external icon.             The same study notes that the five top risk factors for possible death are history of smoking, hypertension, obesity, being overweight, and diabetes.

            According to the Wall Street Journal, " there have been more than 1.89 million cases and at least 72,000 hospitalizations and 20,000 deaths among fully vaccinated people in the U.S. this year... State and federal data broadly show unvaccinated people are primarily driving pandemic numbers. Breakthrough infections, however, are making up a growing portion because of rising numbers of vaccinated people and waning immunity among people who got their shots early on, some states show." www.wsj.com, 11-22-21.

            The two hardest-hit areas for recent public outbreaks are Minnesota and Michigan. Federal medical teams have been dispatched to Minnesota to help at overwhelmed hospitals. Michigan is enduring its worst case surge yet, with daily caseloads doubling since the start of November. “This thing is no longer just throwing curveballs at us – it’s throwing 210-mph curveballs at us,” said Michael Osterholm, a public health researcher at the University of Minnesota. He said that the virus had repeatedly defied predictions and continues to do so. www.nytimes.com, 11-22-21.

            And it is no coincidence to see the official number of new staff infections at Rochester is 7, spread across all departments, meaning that there will be multiple new cases there, whether they make it to the website or not. Alderson camp also has a new outbreak, among fully vaccinated individuals.  Safford continues to have more active cases. From Seagoville, 25 additional cases, to go along with the pre-existing. There continues to be no federal prison treatment of any "Long Haulers," and it would be my educated guess that there is no category in those stone-age prison computers to even allow for data-entry on that condition.

            Of course, none of the studies address the unprofessional ways in which federal prisons administered the vaccine, the low percentage of guard vaccinations, and the amazing level of stupidity exhibited by prison officials in the face of immeasurable human suffering.

            Sixty-thousand inmates potentially did not properly receive credits for time served under the First Step Act's recidivism programs, the Department of Justice inspector general found. "We are concerned that the delay in applying earned time credits may negatively affect inmates who have earned a reduction in their sentence or an earlier placement in the community," Department of Justice Inspector General Michael Horowitz wrote in the report released Tuesday. www.oig.justice.gov. 11-16-21.

             Senator Durbin said it is time for new federal prison leadership.  "Director Carvajal was handpicked by former Attorney General Bill Barr and has overseen a series of mounting crises, including failing to protect BOP staff and inmates from the COVID-19 pandemic, failing to address chronic understaffing, failing to implement the landmark First Step Act and more," Durbin said. "It is past time for Attorney General Garland to replace Director Carvajal with a reform-minded director who is not a product of the BOP bureaucracy."

            We continue to get many inquiries regarding 924c and Hobbs Act robbery cases. See, US v. Simmons, 2021 U.S. App. LEXIS 26399 (4th Cir. 2021).  Of course, the Fourth Circuit has already held that "both generic and aggravated RICO conspiracies are not crimes of violence under 18 USC 924(c)(3)(A). In United States v. Michael Henry (6th Cir. 12-20),  the Sixth Circuit held that defendants convicted under 924(c) and involved in resentencing proceedings on remand must be sentenced subject to the First Step Act’s amendments to 924(c).

            In United States v. Jack Voris, (9th Cir. July 2020, the Ninth Circuit reversed one of the defendant’s assault convictions and corresponding § 924(c) convictions as multiplicitous because the defendant, although charged with shooting at five officers, only shot at them four times. The Court also held that multiple shots fired in quick succession do not necessarily mean the firearm was only used once under 924(c).

            In other circuit news, in US v McClain, Nos. 21-2089 & 21-2090 , (7th Cir.10-18-21 ) the Seventh Circuit reversed a trial court’s order under Rule 36 of the Federal Rules of Criminal Procedure, which had directed an inmate to return to prison after he had finished his sentence in a separate case. While the court had initially sentenced the defendant in two cases, and had ordered that he serve 18 months after finishing his first sentence, the court was inconsistent in its oral pronouncement and its written judgment. Errors by the court itself are not “clerical errors” under Rule 36, so Rule 36 was not applicable.

            Finally, in US v Scott, No. 20-1514 (3rd Cir. 9-21), the court joined the Fourth, Sixth, Seventh, Ninth, Tenth, and Eleventh Circuits, the Third Circuit held that a conviction for Hobbs Act robbery is not a prior conviction for a “crime of violence” under the “Career Offender” provisions of the Guidelines. Eric Scott was sentenced under 18 U.S.C § 922(g)(1) for possessing a firearm as a convicted felon. The District Court applied the career offender sentencing enhancement under U.S.S.G § 2K2.1(a)(2), finding that Scott had two prior convictions for “crimes of violence,” one of which was a conviction for Hobbs Act robbery under 18 U.S.CC. § 1951(b)(1). Scott did not object to this enhancement, but on appeal he argued that it constituted reversible error.

 

Be not afraid and let not your heart be troubled.

 

Derek Gilna, Director, JD, (De Paul, 1975), MARJ, (Vermont Law School, 2020), Federal Legal Center, 113 McHenry Rd. #173, Buffalo Grove, IL   60089 (and Indiana)

dgilna1948@yahoo.com (English newsletter and ALL inquiries, English or Spanish)

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Blog:  "Derek Gilna's Federal Criminal Justice Musings and Reflections."