BOP COVID-19 Woes Grow as Connecticut Judge Rules It Must Do More to Release the Vulnerable

COVID-19 Compassionate Release Cases Climb; Conditions of Confinement Cases Begin

by Derek Gilna

            As compassionate release filings continue to grow, so does the body of law supporting them on the district court level. Although we know of only one positive  appellate decision, a 6th Circuit case (involving Elkton), and no negative cases, many district court judges are holding DOJ and the federal prison system accountable for not only their  abysmal responses to COVID-19, but also to the outright fraud and deception in many government court filings opposing releases of the sick and terminally ill.

            However, the most dangerous development for the government is the first sign that some judges will consider 2241 filings, which can be made in the district of incarceration, rather than a perhaps unsympathetic sentencing court, to win release. In the case of Martinez-Brooks v. Easter, 20-cv-569, (Dist of Conn.) judge Michael P. Shea granted a temporary restraining order (TRO), "aimed at accelerating the process for evaluating inmates for home confinement and compassionate release." The issuance of a TRO essentially is a "game over" for the government's delay and deny defense, and you can be sure the government will appeal. However, the 2d Circuit has already shown itself sympathetic to these types of filings.

            The two Presidential campaigns continue to try to outdo themselves on the issue of sentencing relief, with Joe Biden  and the newest House-passed "HEROES" Act providing for sweeping changes.   Although that latter bill is DOA in the Senate, it sets down some markers that will become campaign issues in the Fall, shifting the pressure back to the President to address the issue yet again, and "up his game."

            Regardless of your politics,  the implosion of the Michael Flynn prosecution makes clear to both the public and Congress the nakedly coercive tactics routinely used by federal prosecutors to obtain admissions of guilt render those admissions utterly unreliable — not just in Flynn’s case, but in every case.  The Flynn case shows why that reform should be a top legislative priority.

            In the Ninth Circuit Senators filed an amicus brief asking the court to rule FIRST STEP Act provisions lowering mandatory minimums apply at a resentencing be made retroactive. This would be an important development, and could lead to relief for thousands of prisoners.  United States of America v Alan L. Mapuatuli, 19-10233 .

            We have also received many inquiries as to whether Compassionate Release and First Step provisions apply to the undocumented or to those in immigration detention facilities, and we believe that it does. One study stages, that it is clear from modeling based upon even the most optimistic treatment of COVID-19 transmission,  "72% of individuals are expected to be infected by day 90," a staggering figure.  This "would overwhelm ICU beds within a 10-mile radius," and put surrounding communities at risk,  and local media outlets are becoming more interested in that issue in recent weeks as  governmental inaction garners more publicity.

            Have a good week and let not your heart be troubled.

Federal Legal Center, Inc., Derek A. Gilna, JD, Director

113 McHenry, #173, Buffalo Grove, IL   60089

(Also in Indiana) dgilna1948@yahoo.com

BOP Covid-19 Response Plagued by Poor Management, Undercounting of Infections

Covid-19 Federal Prisoner Toll Climbs Higher, As DOJ Spews Disinformation

by Derek Gilna

            The Covid-19 pandemic continues to shred whatever minimal fig leaf of legitimacy the federal criminal justice system retains. In government responses to the hundreds of court-filed petitions for compassionate release (CR) currently on file, certain patterns have emerged. Most show that DOJ is operating in its own alternative reality, and purposely under-testing and undercounting infection rates, which in California are around 70%. Despite the fact that time is clearly of the essence in these emergency petitions, it continues with a straight face to demand compliance with the 30-day notice requirement (not the administrative remedy process clearly NOT required by FSA), and tout its "reasoned response" to a disease which has only begun to rip through federal correctional facilities. The heartbreaking  facts you have forwarded to us clearly show otherwise, and show a system which a judge said was "cruel and unusual punishment."

            Oakdale, Elkton, Forrest City, MCC New York, Terminal Island,   Butner and others are only the first institutions to bear the full brunt of Covid-19. DOJ medical staff weeks ago surrendered control to either the National Guard or the CDC in an attempt to stem the tide. Next on the list to experience the full brunt of Covid-19 will be the more isolated prisons, in rural areas like Alabama, or Minnesota, where state-wide numbers continue to climb faster than the rest of the country, as NY and California begins to level off.  

            The newest DOJ memo of April 23, 2020, shows that underlying current health problems, age, and non-violence continue to be prioritized, along with a lower PATTERN score.   Although PATTERN has been tweaked since its introduction, the system continues to be flawed, and is meant to be only ONE tool in a release analysis. In short, any prisoner with an underlying health concern (regardless of other factors) should make an application for CR TODAY, and start that 30-day clock running.

            Congress is certainly aware of this serious problem, and the fact that "social distancing," is not an option in prison, where cleaning supplies containing alcohol are considered contraband..    Senate Bill 3579, which seeks to override DOJ's slow-walking of elderly and ill prisoner releases, is currently awaiting referral to the Senate Judiciary.

            In the circuits, in US v Chambers, 19-7104 (4th Cir. 4-23-20) the court found that FSA mandated that the career-offender aspect of a crack cocaine sentence covered "sentencing error (s)," which the court held to be retroactive, and which "must be corrected in a FSA resentencing." This follows in the spirit of other cases which use FSA and 3582(c)(1)(A) to remedy extreme stacked 924c sentence.    See US v. Wade, 2020WL 1864906 (4-13-20).     In US v Russell, 18-11202 (11th Cir. 5-4-20) the court ordered that Rehaif mandated vacation of a 922g conviction and remanded the case to determine if defendant KNEW of his status barring him from possessing a firearm.

            Permit us to share the following:  "There will be times when you'll want to quit, to cease struggling and give in to despair but you cannot..." Let not your heart be troubled.

Federal Legal Center, Inc., Derek A. Gilna, JD, Director

113 McHenry Rd., #173, Buffalo Grove, IL   60089

(Also in Indiana) dgilna1948@yahoo.com

Bureau of Prisons Minimizes Extent of Covid-19 Illness, but Exaggerates Number of Covid-19 First Step Act Compassionate Releases

More States Commit to Testing All Prisoners, but DOJ Doesn't, Understates Covid-19 Numbers

by  Derek Gilna

            As more states all of their prisoners to determine the full extent of Covid-19 illness, DOJ continues to minimize its problem. AG Barr implied in response to questions from Congressman Bobby Rush (D., Ill.) that DOJ had released 5000 prisoners to home confinement in response to the pandemic, when the true number is certainly less than 2000. However, it is highly likely that he was only passing along numbers given him by the prison bureaucracy of ALL prisoners released to home confinement at the end of their sentence.  The fact remains that DOJ only tests prisoners when they start showing symptoms, such as high fever, but ignores the reality that health experts say the disease can still be spread by individuals who do NOT show any symptoms of illness.

            What has happened in one of the few DOJ facilities where everyone has been tested?  At FCI Terminal Island, California, which holds 1,055 prisoners,  570 prisoners and 10 staffers were found positive after LA Public Health did testing. At  FCI Lompoc, 40 prisoners and 10 staffers, and at its U.S.P.  83 inmates and 15 staff have the virus and one inmate has died. FMC Carswell has almost 300 confirmed cases.  These results show that probably closer to fifty percent of all federal prisoners and staff are infected. Anecdotal information show that the virus is in all federal holding facilities and prisons in ever-increasing numbers, and the public is taking notice that it also is at risk as a result. Clearly, the time for all qualified prisoners to apply for Compassionate Release is now.

            One of the probably outcomes of the pandemic is that judges will probably be taking a closer look at the sentences they are giving, given recent case filings that reveal the true lack of health care and cleanliness in the federal prison system.  There is evidence that some are taking a more expansive view of First Step relief, as noted in US v. Shaw, 19-2067 (consol.), (7th Cir. 4-28-20).   The court said there in reversing a district court (dc) denial of FSA relief, "that a court needs to look only at a defendant's statute of conviction, not to the quantities of crack...(because) covered offenses... committed before August 3, 2010 (are eligible. The court went on to say,  that it should consider, "may it reduce the sentence, (and) should it."

            In U.S. v Roberts, 19-1176. (8th Cir. 5-1-20), the court vacated and remanded, finding that in a 18 USC 922.(g)(1) and 924(a)(2) case, the dc incorrectly a two-level increase for "using a minor to commit a crime...(that should) not have applied." In US v. Jordan 19-40499 (5th Cir., 5-1-20) the court affirmed the dc grant of a new trial "on the basis of prejudicial outside influence on the jury," where "a court employee told the district judge's law clerks that he had spoken to one or more jurors about the case during deliberations." In Jimerson v. Payne, the court found  the defendant entitled to relief "based upon multiple Brady violations, multiple Giglio violations, (and) the prosecution's failure to correct false or misleading testimony as required under Napue v. Illinois.," and granted habeas relief in a state case.

            Stay safe, and let not your heart be troubled.

Federal Legal Center, Inc., Derek A. Gilna, JD, Director

113 McHenry Rd.   #173, Buffalo Grove, IL   60089

(Also in Indiana)   dgilna1948@yahoo.com

BOP Continues to Botch Barr-Ordered At-Risk Prisoner Covid-19 Releases

Courts Now Demanding Answers, Releasing Prisoners, Citing "Cruel and Unusual"

Conditions

by Derek Gilna

            Whether it was intentional or not, a federal judge in Ohio just issued a "shot across the bow" of DOJ and the federal prison system by terming confinement in the face of Covid-19 "cruel and unusual punishment," which should trigger a spate of  future 1983 civil rights actions. In the meantime, judges have also shot down the DOJ "Exhaustion of Remedies" defense in the fact of the obvious emergency health hazards. DOJ persists in refusing to test prisoners even in hard-hit facilities, deliberately under-counting the number of those infected with the incurable virus.

            In contrast, state prison authorities found that in their prisons, THOUSANDS have tested positive, with 96% of those NOT showing symptoms. These people then spread the disease to the most vulnerable and immuno-compromised, and a high percentage of these people succumb. It appears that DOJ is filing objections to all prisoners not released by DOJ, in effect thumbing their collective notices at the hard-to-find and  silent AG, while ignoring the real threat to the aged and chronically ill.

            So we have gone from the  4-3 Memo, to the "List," to  "50%," to....nothing. No guidance from Central Office, but plenty of mainstream exposes. Continuing transfers of the infected from other facilities, which just happened over the weekend at Thomson in western Illinois. In small prison towns across America, like Pekin, Illinois, this lurking threat is front-page news.

            To summarize,  underlying medical conditions are the main criteria judges are examining, not length of sentence, "shots," and even cases of minor "violence," (and not the broad definition used by DOJ to deny RDAP credit). However, make sure that you have a release plan, including a place to live. Let's let the judges make the final call, not DOJ. Judge Gwin's  recent ruling in Wilson v. Williams, 20-cv-794, was a good start.

            In US v Hope, 20-1784, (3rd Cir.  4-21-20), the court is considering a district court judge's order of immediate release of immigration detainees threatened by Covid-19.  The  7th Circuit reversed and remanded the denial of First Step relief, holding that "18 USC 3582(c)(1)(B), rather than (c)(2) is the correct (vehicle)...for relief, and (plaintiff) was eligible for relief under the plain language of the Act." US v. Holloway, 19-1035, (7th Cir. 4-24-20).          In US v Sawicz, 8-cr-287 (USDC, ED of NY), the court granted a SO Covid-19  based home confinement.

             In US v Akande, 18-6833 (4th Cir. 4-20-20), the court reversed the denial of a 2255 petition, finding that the entry of an open plea counseled by defense counsel robbed defendant of his obvious desire to appeal a suppression denial. Finally, in US v Johnson, 17-60852, (5th Cir. 4-21-20), the court vacated a sentence and remanded for further proceedings where the dc judge relied on factual allegations in a confidential sentencing recommendation not in the PR and not disclosed to Johnson, in violation of FRCP 32.

            Have a good week, keep the faith, and let not your heart be troubled.

Federal Legal Center, Inc., Derek A. Gilna, JD, Director

113 McHenry Rd., #173, Buffalo Grove, IL   60089, (Also in Indiana) dgilna1948@yahoo.com, and Google Blogspot, "Derek Gilna's Criminal Justice Blog."

BOP Covid-19 Cases Continue Steep Climb as Rest of Country Looks to Reopen

Attorney General Falls Silent as Covid-19 Threatens Not only Prisoners, but Neighboring Communities

by Derek Gilna

            As the Attorney General falls silent, and local prison officials complain a lack of guidance and preparation from DOJ, Covid-19 continues to spread in prisons and jails across the country, defying the "leveling off" of new cases and deaths that has started in several parts of the country.   There is evidence in Chicago that the over 300 cases and numerous deaths in Cook County Jail has contributed to the disproportionate number of deaths in the Black community there. The MCC Chicago has seen  numerous cases and deaths among both prisoners and staff. There is  also real fear in the rural counties in which most federal prisons are located that the increasing number of prison cases will overwhelm their limited health resources. Unfortunately, this will be the "next wave" of the disease, as the DOJ graph of new cases and deaths continues its steep climb.

            The deteriorating situation has provokes a flood of litigation in sentencing courts across the company, as judges sit in judgment on maters of life and death, while facing ritualistic opposition from DOJ attorneys. Many judges have granted relief, and more cases are awaiting decisions. Although some judges have upheld the 30-day requirement for Compassionate Release filings, most have not, citing the emergency nature of the pandemic. Nonetheless, it is wise to put the prison on notice of your request, in whatever fashion you can, even only via email.  With no access to printers, and with some prison staff discouraging applications, do what you can to memorialize your request by emailing people outside the prison citing date and time of your request.  There is NO need to exhaust administrative remedies, or wait for a denial to get into court. .

            Another common question we get is whether "shots" for minor matters, or the presence of SO or violence in your background automatically disqualifies you.    It does not. It may disqualify you from release pursuant to the prison "list" but the judges have the final say on whether your factual background  and rehabilitative activities support your request, and are well aware of the arbitrariness of most prison discipline.

            In the circuits, in US v. Rosa, 17-2003 (7th Cir. 4-17-20) the court vacated and remanded the denial of a 2255 petition, finding that the district court sentenced defendant without giving any  3553 reasons. In US v. Chaparro, 18-2513, (7th Cir. 4-13-20), the court in a SO matter vacated the conviction based upon a violation of the pretrial confidentiality rule used for impeachment, and ordered a new trial.  Finally, in US v. Allen, 19-3606, (6th Cir. 2-12-20), the court remanded a FSA denial, where Allen had argued that the statutory minimum penalty for his drug offense had been lowered, and that post-sentencing conduct MUST be considered in considering the request.

            In these challenging times, never give up, and let not your heart be troubled.

Federal Legal Center, Inc, Derek A. Gilna, JD, Director

113 McHenry Rd., #173, Buffalo Grove, IL   60089

Also in Indiana. dgilna1948@yahoo.com;

Google Blogspot, "Derek Gilna's Criminal Justice Blog."

Bureau of Prisons Covid-19 Release Policies Quietly Expanding

DOJ Scrambles to Spin Covid-19 Cases and Deaths but Quietly Expands Release Criteria

by Derek Gilna

            Each day of the last week has brought dizzying changes in federal prison policy relating to Covid-19 release criteria, driven not only by the Attorney General, but also public opinion, and lawsuits from both individual prisoners and federal prison guard unions. Local, rural communities adjacent to prisons rightly fear that their limited health care facilities will be overwhelmed by the disease's spread.  DOJ still has not done sufficient testing and fails to properly protect prisoners and prison employees from the deadly virus, ineptly "quarantining" sick with healthy prisoners, and "spinning" and "minimizing" the crisis. DOJ's systemic Covid failures are front-page news everywhere.

            Those "non-violent," non SO, "non-violent" prisoners over 60 who have served roughly half of their sentences, and who have CDC-defined risk factors are being prioritized, but the only certainty in this statement is that it will change, based upon other factors that REALLY drive DOJ policy: fear of bad publicity and ACLU and prisoner lawsuits. Close to 1000 have already been released to home confinement, including one who had an "escape." Prison medical treatment is so substandard that every member of prison staff should be held liable if you are denied release, and are then infected, as a violation of policy, not to mention the 8th Amendment. More on that next week.

            What if you are not on the "list?" Start the clock by filing a request for Compassionate Release, citing "extraordinary and compelling" reasons, including Covid-19, especially if you meet the aforementioned criteria. That request can be in writing or via email;   keep a copy.   If you are rejected, or the warden fails to respond in 30 days, First Step permits you to file WITHOUT exhausting administrative remedies, although never a bad idea to continue filing them.  Start working on a release plan, and gather your medical and programming evidence, as a matter of routine, for possible future use. By all

means, put prison staff on notice that your physical health is threatened by their inaction.

            Despite the pandemic pandemonium, federal courts are still all put and running, although oral arguments have been put on hold. In USDC, WD of Louisiana at Lake Charles, a class action by prisoners at Oakdale progresses before Judge Doughty, alleging DOJ misconduct, forcing DOJ to defend its practices. Livas, et al., v Myers, 20-cv-422.  

            In US v Smith, 19-1615, (1st Cir. 4-8-20), the court reversed a denial of FSA relief, after finding eligibility for a sentence reduction of a 841(a)(1), (b)(1)(C) charge,  because his offense was a "covered offense" for FSA purposes, citing supporting cases from most appellate circuits, and that the result was supported by Congress's intent.

In US v Oliver, 17-15565, (11th Cir. 4-8-20), the court reversed, stating that making terroristic threats is not a predicate violent felony under ACCA.

            In this week following Easter and Passover, let not your heart be troubled.

Federal Legal Center, Inc., Derek A. Gilna, JD, Director

113 McHenry Rd. #173, Buffalo Grove, IL (And also Indiana)

dgilna1948@yahoo.con.  Google blogspot: Derek Gilna Criminal Justice Blog

Covid-19 Federal Prison News Update

Public, Congressional Reaction to DOJ Prison Mismanaged Pandemic Response Spurs Recent Bureau of Prisons Release Drive

By Derek Gilna

           When you take away a person's ability to protect and themselves from disease, and then fail to treat them,  you own the results.   Fear, which I would argue drives most human actions, has taken over DOJ, and exposed its failures to the public at large. Although there is no doubt that Attorney General's recent memos suggesting that vulnerable prisoners will be released is a good start, we all know that the flawed classification system and shoddy and unprofessional medical record keeping leave it poorly positioned to accurately identify those individuals.

          Another serious issue is the LACK OF TESTING for Covid-19 in the institutions. By way of comparison, at Cook County, Illinois jail, which currently holds in excess of 3000 detainees, 295 prisoners have tested positive.  Although fortunately most federal facilities do not have the daily public contact of a county jail, guards and outside vendors do come and go. Clearly DOJ is not EXTENSIVELY testing for one of two reasons: (1) it lacks sufficient testing kits to do so, or (2) it is afraid of what the results of testing will show. Unacceptable.

         As of Monday morning, and these are the (minimum) confirmed figures: Danbury, CN had over 20; Oakdale, La. 75; Lompoc, 19; Yazoo City, Ms., 18; Butner, NC., 12.  DOJ said Sunday that 139 prisoners and workers have tested positive, and 7 had died.   The real figures are probably much higher. DOJ has come up with its own version of "Schindler's List," identifying 10-20 in each institution who should be released either because of age, illness, or nearing release.   It is a belated attempt to show the public and Congress that they are doing "something." Don't be fooled.   File your request for Compassionate release in any fashion possible, NOW, and seek judicial action if that request is denied.

         The U.S. Supreme Court (now working remotely), held in Davis v. U.S., 589 US_ (2020), that in a 8 U. S. C. §§922(g)(1), 924(a)(2), and possessing drugs with the intent to distribute them, 21 U. S. C. §§841(a)(1), (b)(1)(C), case, that " the Fifth Circuit’s outlier practice of refusing to review certain unpreserved factual arguments (where a timely objection was not made in district court) (was) plain error. We agree with Davis, and we vacate the judgment of the Fifth Circuit." 

        In the circuits, in US v. Phea, 17-50671, (3-31-20), the Fifth Circuit ruled in a appeal of a denied 2255 petition that defense counsel "rendered ineffective assistance by failing to object to an obvious constructive amendment," and reversed. In a SO matter, where there were allegations of violations of 18 USC Section 1591(a) and 1952(a)(3), and the court's instructions to the jury plainly reworded the indictment, the court granted relief.

       We will continue to give you the FACTS needed to debunk rumors and falsehoods.    Stay safe, and let not your heart be troubled.

Federal Legal Center, Inc., Derek A Gilna, JD, Director,

113 McHenry Rd.   #173, Buffalo Grove, IL   60089

(Also in Indiana) dgilna1948@yahoo.com

847-878-0160