Biden's Executive Order Again Prods the Prison System to Enforce FSA; Court Action Still Needed to Gain Relief;

 

 Congress in Session Most of June, So Will EQUAL Come to a Vote? COVID, SCOTUS, and Circuit Updates 

by Derek Gilna, Director of Research 

            Prisons were abuzz the past week regarding President Biden's recent executive order,  which devoted 90% of its content to the need for more police accountability and procedural reform, and less than 10% to what many consider an unduly restrained response to serious operational problems in the federal prison system and its obvious non-compliance with the clear language of the First Step Act (FSA).  

            As one respected reform advocate noted, "Regarding prison conditions and sentencing, the order seeks to improve material conditions in jails and prisons and identify inmates eligible for early release. Within 180 days, the Attorney General must detail steps it has taken to limit the use of solitary confinement, for example, as well as a comprehensive report on conditions in BOP and other federal facilities. Finally, the order has several provisions aimed at implementing the First Step Act and ensuring its implementation does not have any inequitable or disparate impacts."

            The order also stated the following: " Sec. 16 . Supporting Safe Conditions in Prisons and Jails. (a) For the duration of the HHS public health emergency declared with respect to COVID-19, the Attorney General shall continue to implement the core public health measures, as appropriate, of masking, distancing, testing, and vaccination in Federal prisons." It also directed that it, "(iii) identify... the number of individuals who meet the eligibility requirements under the CARES Act (Public Law 116-136), the First Step Act, 18 U.S.C. 3582(c), 18 U.S.C. 3622, and 18 U.S.C. 3624, for release as part of the DOJ's efforts to mitigate the impact and spread of COVID-19." In other words, CARES is alive and well, and releases should continue.

            Although there have been  a lot of rumors circulating about a recent change in PATTERN, the language of the same order on that subject shows that (as usual) it was untrue: "(C) (develop) a strategic plan and timeline to improve PATTERN, including addressing any disparities and developing a needs-based assessment system."    Obviously, the reference to a new "strategic plan" means that at the moment, there is NO NEW PLAN in place, and no improvements to PATTERN have actually happened.

            The sum and substance is that this order shows the White House is aware of the federal prison system's continued non-compliance with FSA, and the implication is that for the immediate future, you should continue to look to the courts to enforce the law.

            We get many inquiries about what the Second Chance Act is, including how one qualifies for it. To begin with, EVERYONE qualifies for the Second Chance Act, since it is the name given to annual laws passed to funnel money to various post-release programs, to fund vocation training and other re-entry services in various states. Prison officials have no say on who gets it, since it is administered by DOJ and the US Probation Office, and made available to everyone.

            There has been a lot of "hand-wringing" regarding the fact that EQUAL has not yet come up for a vote in the Senate, where it clearly has the votes to pass, with or without opposition. I would point out that the Senate is in session most of June, and if Majority leader Chuck Schumer is as serious about passing the bill as he says he is, it is a done deal.    However, I still see it more likely that the bill will come to a vote AFTER the November election, and perhaps with a strong push from the White House.

            Also, those in Congress actively investigating the failing federal prison system have been buried under an avalanche of material and evidence pointing to serious problems in the system, starting at the top. It has reached the point that even office-holders not previously known for interest in the messy subject of corrections are demanding answers, as the system nears a breaking point.

            One of the issues that continues to evade solution by DOJ is the continuing ravages of COVID, its variants, and now, Monkey pox, which the system continues to ignore, other than to isolate the infected in solitary confinement. Perhaps the new Biden order will have an effect on this, but until there is new leadership, and a modern management approach adopted, solvable problems will continue to grow worse.

            One of those problems is the quiet and under-reported spread of Monkey pox.

Officials with the World Health Organization (WHO) say that the sudden rise in Monkey pox cases worldwide suggests that it has been spreading in an undetected manner for some time. “We don’t really know whether it’s too late to contain. What WHO and all member states are trying to do is prevent onward spread,” Dr. Rosamund Lewis, the WHO’s Monkey pox technical lead, said at a news conference in Geneva on Wednesday.

Be not afraid, and let not your heart be troubled.

Derek Gilna, Director of Research, JD, (De Paul Law School , 1975), MARJ, (Vermont Law School, 2020), Federal Legal Center, NEW ADDRESS: 133 W. Market, #171, Indianapolis, IN 46204; dgilna1948@yahoo.com (English newsletter and ALL inquiries, English or Spanish); (Alternate email: dagilna1948@yahoo.com, firststeprelief@yahoo.com). federallc_esp@yahoo.com, Spanish newsletter, but NO inquiries. (This Newsletter is for Information Only and Does Not Constitute Legal Advice. The Director of Research is not an  attorney currently licensed to practice in any jurisdiction.) Blog:  "Derek Gilna's Federal Criminal Justice Musings and Reflections."