BOP's Covid-19 Problems Continue, and Congress is Not Happy

Will Covid-19 Pandemic Finally Motivate Congress to Enact Sweeping Justice Reform?

by Derek Gilna

            Lost in the noise of the global pandemic is the real frustration felt by members of Congress who have found themselves completely helpless to influence the conduct of the federal prison system's complete ineptitude in this crisis. One of the hot issues is that the "no-testing" DOJ is STILL transporting Covid-positive prisoners without regard to the current health crisis. Of course, the inability to get straight answers from this agency come as no surprise to us, since the underlying structure is dysfunctional and wardens do as they please with little accountability to anyone, including the AG.  

            Part of the problem is that Congress gets no say in who runs the system: the President names the AG, who in turn names the director, generally picking someone who has come up through the ranks from CO. HR  6678, the Federal Prisons Accountability Act of 2020, would require the appointment of the federal prison director to be subject to the advice and consent of the Senate. Given the current political climate, and the fact that criminal justice reform is a bipartisan priority, this could pass and pass quickly.  Most other bills are currently on hold as the November election campaigning rolls on.

            Neither the recent Supreme Court "pass" on hearing the details of the FCI Elkton case, or the 6th Circuit's  vacation of Judge Gwin's very broad (and landmark) injunction against DOJ changes much, since DOJ was dragging its feet on compliance. It does not change the facts that this crisis is still very much with us and will be for months to come, Nothing that DOJ has done has eliminated the virus from prison, and re-infections will continue until prisoner counts drop substantially.   Prisons are now being blamed by mainstream media for introducing the virus into rural communities ill-equipped to handle the problem. There are no secrets in prison, as DOJ has begun to realize, as judges continue to release more prisoners, disregarding knee-jerk, non-factual DOJ arguments.

            In other words, the window for compassionate release is still wide open, and will be for many months to come, give DOJ's tenuous grasp of the staying power of Covid-19;

            In the circuits, in US v. Hodkiss, 19-1423, (8th Cir. 6-8-20), the court remanded, stating that the dc must consider if defendant was eligible for a 3553(f) safety-valve, even if relevant conduct said that he possessed a firearm in an earlier case, since the safety-valve was law, not a creation of the US Sentencing Commission.

            In an interesting case, the U.S. Supreme Court in Bannister v. Davis, in a review of a Texas state habeas case, considered the question of whether "a motion brought under FRCP 59(e) to alter or amend a habeas court's judgment qualifies as...a successive motion.   We hold it does not.  (It) is instead part and parcel of the first habeas proceeding."   This holding permits review of an adverse habeas ruling without the necessity of seeking a Certificate of Appealability with the Appellate Court, a significant development.

            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."

Supreme Court Puts Elkton Prisoner Release on Hold, While BOP Appeals to 6th Circuit

SCOTUS Issues Temporary Stay of Elkton Prisoner Release, Awaiting 6th Circuit Ruling

by Derek Gilna

            Last week the Supreme Court of the United States (SCOTUS) issued a temporary stay, authored by Justice Sotomayor, which put on hold federal district court rulings compelling the federal government to transfer 800 vulnerable prisoners from Elkton to either home confinement, or other institutions. The focus now shifts to the pending 6th Circuit ruling on government appeals of the same issues orally argued last week.

            In the districts, judges have been dealing with a deluge of Compassionate Release (CR) petitions, motivating federal prison officials to transfer qualified individuals, including several in which we were involved, to either home confinement or outright release. The COVID-19 releases show no sign of slowing down. as the disease continues its spread in federal prisons. At the Butner complex, out of 4000 prisoners, over 500 have contracted the illness. Judges, however , have largely strictly enforced the requirement of waiting 30 days after filing for CR at the prison level before considering CR court filings.

            Institutional lockdowns continue, with a few exceptions,  to restrict the flow of communications between prisoners and their family and outside contacts, which has resulted in a lot of "snail-mail," which we will do our best to answer in a timely fashion.

            As inner cities calm, SCOTUS considers whether to roll-back the doctrine of "qualified immunity," which has largely shielded law enforcement from accountability for questionable police tactics. We would expect this doctrine to be severely limited when the court considers the three related cases before it. Can the end of prosecutorial immunity be far behind?  The public no longer supports policy that accepts  police as above the law. Both political parties can be expected to reflect this in party platforms.           

           In  the circuits, the 7th Circuit issued a Rehaif decision in US v. Maez,  19-1287 (consol.), 6-1-20, wherein it ruled that "Rehaif's discussion of 'the well-known maxim that 'ignorance of the law...;is no excuse' makes doubly clear that 922g requires knowledge only of status, not knowledge of the 922g prohibition itself," rejecting the "willfulness" defense.   It let stand, the "narrower  requirement of knowledge of status."

            In the 6th, in US v Boulding, 6-1-20. the court on FSA grounds affirmed that "defendant is entitled to an accurate amended guideline calculation and renewed consideration of 18 USC 3553(a) factors, and a defendant seeking to raise objections must be afforded an opportunity to do so."    Finally, the 8th Circuit  in US v. Banks, the court affirmed a FSA sentence reduction from 55 years to 40 years, in a 21 USC 846(b)(a)(A) conspiracy to distribute 50 grams or more of cocaine base over government objections.

            We encourage all of your with recent convictions or unsuccessful direct appeals to

consider filing a 2255 habeas petition, alleging inadequate representation of counsel, in an attempt to win a lower sentence, as did one of our clients who was recently sent home.

May your efforts to win justice never cease, 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, blogging as "Derek Gilna's Criminal Justice Blog."

BOP Prisoners Continue to Get Sick and Die In Prisons As Civil Unrest Seizes Headlines

Hi-Visibility Demonstrations and Riots Knock Pandemic News Off Front Page

by Derek Gilna

            The several-month run of pandemic news dominating headlines came

to an end over the weekend, as big cities dealt with fires and looting, with regular U.S. Army troops positioned themselves alongside local police and national guardsmen. The hard work of winning Compassionate Release and sentence relief under the First Step Act still continues, but without the advantage of relentless bad publicity exposing the federal prison system.   Nonetheless, the momentum for change is too strong to be sidetracked, as many federal judges finally show themselves to take on stone-walling bureaucrats.

            Although there has been no new update on S.1380, requiring prosecutor compliance with Brady discovery mandates, the Senate will start hearings regarding "best practices for incarceration and detention during COVID-19." Should proved interesting.

Former Georgia Governor Nathan Deal has launched the bipartisan "Next Step" task force, calling for an end to mandatory minimums and other major reforms.

            Many current and former top prosecutors and police chief have urged the 6th Circuit to act decisively to fast track the release of prisoners from Elkton, after SCOTUS in a 6-3 vote refused to block the orders of judge James Gwinn to release 800.. A class action proceeds in Lompoc, California alleging "mismanaging" of the crisis there, with at least 843 testing positive. Lawyers for prisoners at the MCC Brooklyn are seeking a preliminary injunction to force the jail to meet minimal standards of medical care. Butner has seen an uptick in cases of over 400 and a string of bad press and new lawsuits. Yazoo City has been seeing am increase of infections and at least one fatality. One of my Prison Legal News colleagues at FMC Devan has also fallen ill, but is recovering.

            For months now judges have been literally bombarded with well-drafted petitions complaining of horrific conditions in the federal prison system and its tardy or non-existent reaction to the pandemic that has infected thousand of prisoners and killed hundreds. Judges must now confront the ugly truth of their over-sentencing, along with the misconduct of the prosecutors and prison officials attempted concealment of the facts

            In the circuits, in US v Smithers,19-5849, 5-26-20,  the  6th Cir affirmed the denial of FSA relief  in a Fair Sentencing fact situation, since even with the reduction Smithers' mandatory minimum sentence  he still qualified as a career offender, and the court's denial of discretionary FSA relief under 3582 was supported by the facts. It left intact, however, the fact the challenge was proper of FSA, leaving the door open for future relief in other cases. Also in the 6th Cir., in US v. Perez-Rodriguez, 18-4203, 5-27-20, the court said that in a case involving illegal reentry, the sentencing court's use of facts outside the record rendered the sentence substantially unreasonable, and reversed and remanded. In another FSA decision, in US v. Banks, 19-1750, 5-28-20, the court upheld a sentence reduction from 55 years to 40 years, of and 846 and 841(b)(1)(A) matter.

            Points to Ponder: "Always remember Goliath was a 40 point favorite over David." Never give up, never surrender. 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

Blogging at Google Blog Spot as "Derek Gilna's Criminal Justice Blog."

BOP COVID-19 Response Under Scrutiny by Federal Judges

Happy Memorial Day! Thanks to All Veterans For Your Honorable Service and Sacrifice

by Derek Gilna

            Today we pause to remember our nation's veterans past and present, and to honor our fallen warriors.  We are forever in your debt and will do our best to rebuild this country to fulfill the promise of Freedom made to us by the Founding Fathers.

            Those Founding Fathers would not recognize our country, with its bloated carceral bureaucracy that imprisons 20% of the world's total prisoners, while having only 5% of the world's population. However, there are clear signs the public may be demanding an end to this incarceration fixation and demanding yet more reform.

             Ending mass incarceration is perhaps the only issue on which both political parties agree, as the nation refocuses on China as the new bogeyman, instead of the mythical "super predator" of the eighties and nineties.  The highly-efficient surveillance-and-confidential-informant apparatus, empowered by a compliant, vote-seeking Congress, became quite efficient in converting low-level users (often via non-existent "ghost dope")' into "kingpins," and judges competed to see who could sound tougher in scolding the accused forced to plead guilty at a rate that made a mockery of the right to a jury trial guaranteed by the Bill of Rights. Prosecutors advanced their political careers by doing everything to frustrate Brady discovery requests, and made accomplices of many defense counsel who offered little resistance and  failed to protect their clients.

            It is impossible to overstate the impact of the First Step Act (FSA), which provided new avenues for sentence relief. For the first time in decades, prisoners are able to directly petition their sentencing judge to grant them compassionate release, not only for being terminally ill, but because of a nationwide pandemic the prison system pretends it is controlling, while deliberately understating rates of infection and death.

             Like nervous little children who have been called out by adults for misbehavior, federal prison officials in at least two prisons have been ordered to present daily reports on what the status of testing, infection, and releases are in their institutions.  In several   prison medical staff has ceded total control of health care and virus testing to either the CDC,  military. or National Guard. DOJ. The prison "healthcare" system is mocked by the media. "Nothing to See Here" has been replaced with, "Please Help Us!"

            Perhaps even more importantly, FSA has forced DOJ to institute an education program that when fully implemented will release many thousands more prisoners than Compassionate Releases ever could and will provide job training to help prevent recidivism. Congress also recently  introduced the Revitalization Act to compel DOJ to place prisoners closer to home, making mandatory what FSA made optional ( and therefore ignorable). The U.S. Supreme Court accepted for consideration Borden v. US, 19-5410 (6th Cir.), which asks whether the "use of force" clause in ACCA encompasses crimes with a mens rea of mere recklessness. The 6th Circuit in US v. Smith, 19-5281, cited FSA in reversing a district court denial of a 3582(c) motion that directly attacked the 20 year mandatory minimum, a stunning development.

            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 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