Biden Agrees that CARES Act Recipients Won't Return to Prison; Supreme Court and Congress Off Until New Year; DOJ COVID Response to DELTA and OMICRON Repeats Mistakes of "Action Plan;" Alderson COVID Outbreak Gets National Coverage; Studies From UK and Israel Show Vaccinations and Boosters Only Reduce Omicron Infections for two Months; Case Updates
by Derek Gilna
The White House gave in to intense pressure this past week and agreed that individuals released under the CARES Act would not be returned to prison and would continue serving out their sentences at home, and indicated that it will probably also grant them clemency. This move received no criticism, which bodes well for future sentence reform initiatives. You will recall that Congress introduced legislation earlier in December to reform the federal clemency process, in response to Biden granting ZERO clemencies in his first twelve months.
Alderson prison's COVID outbreak made the local and national news, as the number of COVID infections continues to force the shutdown of all but basic operations, with multiple living units forced into quarantine. Local television and newspaper coverage has done their best to penetrate the veil of secrecy of the federal government's most publicity-adverse institution, and even Forbes magazine, read by opinion leaders (including federal judges) highlighted in excruciating detail the scope of the problem and the lack of a meaningful response.
It is noteworthy that although the federal government and certain cities and states have either instituted lockdowns or issued sweeping vaccination requirements for public events, there appears little urgency in DOJ to offer vaccinations or special treatment to the infected at Alderson or elsewhere, which tells me that although it cannot state so publicly, it does not fear OMICRON. Perhaps it should, as there have been at least two verified deaths, one at Alderson, and one at Carswell, in which COVID played a role.
And it's
not just Alderson and Carswell. Covid is at Lexington Atwood Satellite Camp for
Women, with at least 40 women ill. Multiple cases and quarantines at FCI Dublin
and
In Israel, which shut its borders to foreign travelers, and the UK, which has skyrocketing totals of OMICRON infections, statistics show that the vaccinated and unvaccinated contract OMICRON at similar rates, and that even the booster shots gives only 50 to 80% immunity for approximately 60 days. However, here is the problem: in the outside world, infected people get needed medical attention eventually, and have at least some health care options. Prisons are full of elderly, and often frail people, whose health is often poor to start with, and who may still be battling complications from a previous bout with COVID.
The other
noteworthy development is that government funded studies in the
Expert
advisers to the Centers for Disease Control and Prevention will meet to discuss
what federal health officials see as a concerning increase in the rates of a
rare but serious blood clotting disorder linked to Johnson & Johnson’s
coronavirus vaccine.
The Advisory Committee on Immunization Practices will see
new data at the meeting that shows elevated risks of the condition in men and
women, according to one federal official, setting the stage for the experts to
possibly recommend new restrictions on the use of the vaccine. Among the women
who were diagnosed with the syndrome, which can impair clotting and cause
internal bleeding, about one in seven of them died, the F.D.A. said. www.cdc.gov.
So when all is said and done, you have to advocate for your own health care. As I have previous noted, request and retain all medical records, receipts, and labels off medication and prescriptions, keep a diary of all interactions with prison medical staff and outside medical providers, send emails to all prison medical personnel documenting your current medical condition, treatment (or lack of it), how you feel, and what treatment that you requested, but didn't get.
When
Congress returns from its holiday break, my suspicion is that members will find
their email inboxes jammed with messages from the public demanding action to
resolve this metastasizing humanitarian crisis, while prison populations begin
to move upward once again. Meanwhile,
prison staff are heading for the exits, regardless of retirement status, with
some prisons like Florence, operating with one-third fewer employees, and
requiring mandatory overtime to maintain operations. Only 13,762 of the 20,446
full-time federal correctional officer positions across the country were filled
in May, according to the Associated Press. The continued staffing
shortages and several high-profile cases of officer misconduct led the chairman
of the Senate Judiciary Committee in November to call for the firing of
the prison bureau’s director.
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In the circuits, in US v. Capers, 17-1836, (2d
CIr. |
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defendant appealed his 42 year sentence imposed after his conviction by a jury of conspiracy to violate the Racketeer Influenced and Corrupt Organizations Act (RICO), conspiracy to distribute narcotics, and murder through the use of a firearm during a crime of violence or drug trafficking crime. The Second Circuit agreed with defendant that, under binding precedent from the Supreme Court, RICO conspiracy is not a crime of violence for purposes of 18 U.S.C. 924(j). The court explained that, because it is unclear whether the jury based its decision to convict defendant of the firearm-murder offense on the erroneous belief, in light of the trial court's instruction, that RICO conspiracy is such a crime, defendant's conviction of that offense must be vacated. The court otherwise affirmed the district court's judgment and remanded for further proceedings. In In US v.
Sincleair, 20-10495, (5th Cir. 2021), Sincleair appealed the application of a
two-point firearm sentencing enhancement to his offense level under U.S.S.G.
§ 2D1.1(b)(1). He pled guilty without a plea agreement to one count of
conspiracy to possess a controlled substance with the intent to
distribute it under 21 U.S.C. §§ 841(a)(1) and (b)(1)(C). Over Sincleair’s
objection, the district court applied a two-level firearm possession
enhancement under U.S.S.G. § 2D1.1(b)(1) because a firearm was present at the
locations where the drug transactions occurred. Sincleair appealed. The Fifth Circuit reversed and remanded for resentencing. The record is insufficient to support the firearm enhancement because the PSR did not include sufficient facts to establish a temporal and spatial relationship between Sincleair, the gun, and the drug trafficking activity. Sincleair was not shown to have any connection to or knowledge of the gun, and the district court failed to make a record of what its rationale may have been supporting the enhancement. Be not afraid and let not your heart be troubled. Derek Gilna, Director, JD, (De Paul Law School , 1975),
MARJ, ( Blog: "Derek Gilna's Federal Criminal
Justice Musings and Reflections." |
