BOP Guards' Unions Say Bosses Have "No Plan" to Fight COVID-19, File Suit Over Dangerous Working Conditions

 

Federal Prison System Now Sued By Its Own Employees for COVID-19 Negligence

 

by Derek Gilna

 

            There is no surer way for any institution to lose legitimacy than to deny responsibility for its own incompetence. If the federal prison system was a private corporation, it would have declared bankruptcy, faced liquidation, its employees fired, and its name taken off its buildings. And there is no more telling indictment of an institution's moral bankruptcy than when its own employees sue them for putting them in danger, accusing them of lack of leadership and direction.

            Has the staff seemed especially "radiant" these days? Perhaps it's because at certain institutions, employees reporting for work are bathed in high-dose ultra-violet  light, which some studies have shown causes cancer, and lawsuits have followed.

            Meanwhile,  COVID-19 cases inside both state and federal prisons rise another 10 percent in the past week. At least 86,639 prisoners across the country have now tested positive for the Coronavirus. Three out of four prisoners have tested positive for COVID-19 at FCI Seagoville, a federal prison near Dallas. Eighty percent are positive at Coleman women's facility. In facilities like FCI Florence, there are often no medical staff at night, or for pill line.

            A surge of cases at USP Marion alarms medically vulnerable prisoners and their families. FCI Allenwood, Lewisburg (35 positives) , and Waseca have seen increased cases. Carswell and Forrest City (Named for a former Confederate General) continue to be hard-hit.  No wonder that the number of virus-driven judicial releases to home confinement have continued across the country, while wardens continue to deny releases-and reality.  Yet, DOJ has approved a restart of prisoner transfers, despite the absence of adequate cleaning supplies everywhere.

            In the circuits, in US v Howard, 19-1005, (7th Cir. 8-3-20), the court in a SO case reversed and remanded a 2251(a) conviction: "the government's interpretation of 2251(a) stretches the statute beyond the natural reading of its terms." In US v Rivera-Berrios, 19-1467, (1st Cir. 8-3-20), the court reversed and remanded a 922(o)1 conviction where the judge abused his discretion in sentencing one year above the guideline range.

            In re Robert Gene Will, II,  17-20604, (5th Cir. 8-5-20) the COA approved the filing of a Third Successive 2255 that convincingly argued a Brady violation, "claiming that the prosecution unconstitutionally suppressed evidence under Brady and that he was actually innocent." SCOTUS refused to uphold "a preliminary injunction requiring the Orange County, California sheriff to implement certain safety measure to protect their inmates during the ..pandemic," arguing that it went beyond CDC guidelines. In US v. Hudson, 19-2075, we previously noted that the court appears to encourage FSA filings regarding the question of "covered offenses," something to seriously consider.

            In the face of inefficiency, ignorance, and incompetence, we must all rely on not only our own resources, but a higher power, putting aside fear in favor of positive action.

Let not your heart be troubled.

 

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

113 McHenry Rd.   #173, Buffalo Grove, Il   60089 (And Indiana)

dgilna1948@yahoo.com;   Blogging at "Derek Gilna's Criminal Justice Blog."

BOP COVID-19 Nightmare Continues as Infection Spreads to New Prisons

Memo to Federal Prison System: Incompetence, Mismanagement, and Deception On Public Display.

by Derek Gilna

            Things are so bad in the federal prison system that loved ones are taking matters into their own hands. In Beaumont, Texas, mom, wives, and girlfriends of the confined and at risk demonstrated at the prison gates, demanding accountability and action on behalf of their love ones at risk from COVID-19. KDFM, Channel 6 ran a long segment about Beaumont, and a broom with a sign attached neatly summarized the message:  "Sweep Out Negligence,." and another sign said,  "Prisoners Lives Matter."

            According to WDTV in West Virginia,  one staff member at Hazelton and one at McDowell tested positive "in the last month,"  The same station reported in July that,       "One inmate at FCI Hazelton tested positive for the virus, while a staff member at USP Hazelton also contracted COVID-19, according to...the (DOJ)." WV cases are widespread and spiked in July, and women's' prisons at  Bryan, Tallahassee and Greenwood have also been affected. Unfortunately, in Forrest City, prisoners who had the virus, and then recovered, apparently have become re-infected, which CDC feared, and DOJ resistance to mass-testing means that asymptomatic prisoners can be spreaders.                                      The persistent pattern of negligent  medical under-staffing, ignoring sick call requests, and lack of cleaning supplies, as noted by a federal judge in NY, (and at FCI Gilmer,)  means that this scourge will probably continue in federal prisons for many months, and continue to fuel rises in cases in surrounding towns. In Texas, communities are blaming prisons for introducing the virus into their heretofore minimally-affected populations. The DOJ Inspector General issued a scathing report on the crisis at Lompoc, and their observations unfortunately could apply to most federal facilities.                        The Biden-Sanders Unity Task Force platform has recommended more changes to mandatory minimums, and a revision of federal prosecutorial guidelines to avoid coerced plea deals or overcharging. However, his choice of VP will indicate if the campaign is truly serious about supporting more Congressional action on reform issues.

            In the circuits, in US v Lozado, 19-1222, (10th Cir. 7-28-20), the court reversed and remanded for resentencing the denial of a 2255 that alleged that three 924e qualifying priors were negated by Johnson. In US v Rendon, 19-2515, (8th Cir. 7-27-20), the court vacated and remanded an Amendment 782 action where the PSI drug quantity estimate was too high. In US v. Hudson, (7th Cir. 7-22-20) the court ruled that FSA permitted a court to reduce a "non-covered" sentence when it includes both "covered and uncovered offenses," and may do so even if FSA "did not alter the Guidelines range for a defendant's covered offense.

            We are available to review your sentence for possible 2255 petitions where inadequate representation of counsel has occurred, and have been successful in our Compassionate Release filings, and would like to add you to our growing "out" list.

Let not your heart be troubled.

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

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

dgilna1948@yahoo.com, Blogging at "Derek Gilna's Criminal Justice Blog."

BOP Continues to Bungle COVID-19 Response: Courts Releases Drop BOP Population 1000 a week

SCOTUS in Recess, Congress Approaches Adjournment,  Covid-19 Crisis Continues

by Derek Gilna

            Thousands of personal crisis are unfolding in federal prisons as DOJ continues to fumble its response to COVID-19.  At places like FCI Seagoville, there 61 active cases among inmates, and 882 cases as of Tuesday, about 48% of the population. Carswell's cases are approaching 200 and growing rapidly at a facility filled with the medically frail.

Staff are also getting sick, and when tempers grow frayed in places like FCI Gilmer, prisoners are also made to suffer.  Mass testing is the only answer to containing the crisis, but it has only happened in a few areas, since DOJ appears to fear negative publicity from the high number of positives it would certainly reveal.

            To file a Compassionate Release petition in federal court, you MUST file for it with the warden, and either be rejected or wait 30 days. Note that some wardens refuse to give denials in writing, perhaps to slow down the court filing process, and in that instance you must confirm via email the date you submitted the request, and when you received the denial.  This is important.   You DO NOT need to go through the BP process.

            The various district court clerk offices are struggling to keep up with the crush of filings, leading to record delays in getting new cases and other filings posted on PACER.  Despite these delays, the federal prison population is still dropping, and now stands at 159,000. Prisoner population is declining at roughly 1000 persons per week.

            If you want to stay up to date on what is happening nationally with Covid subscribe to Prison Legal News. They currently have a special going for prisoners who have never been PLN subscribers before. $1 gets you a six issue trial subscription. They will take 2 stamps as payment too. An annual subscription is $30 for 12 issues. Their address is: Prison Legal News, P.O. Box 1151, Lake Worth, FL 33460.

            Senator Rand Paul, no fan of the federal government or its "justice" system, argued this week that " Congress could make significant progress by repealing conspiracy laws that result in easier convictions and cruel prison sentences that either do not fit the crime or apply when no crime has been committed at all."

            In the circuits, US v Steward, 19-60624, (5th Cir. 7-9-20), reversed and remanded denial of FSA FAIR sentence relief, although it did not require plenary resentencing.

In an interesting white collar case, in US v. Obagi, et al, the  USCOA for the 9th Circuit reversed convictions for federal mortgage fraud, and remanded for further proceedings, in a case in which the government disclosed after the close of evidence information impeaching a government witness in violation of Brady v. Maryland. How many other cases are out there like this one?   18-50170, consol. (9th Cir. 7-17-20).

            How can we assist you today? Remember, regardless of your past, you deserve a future.   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 Derek Gilna's Criminal Justice Blog

BOP Virus Spread Continues: Prisoners Now Part of Virus Experiment at FCI Forrest City Arkansas

New Study Finds Prisoners Over Five Times More Likely to Get COVID-19

by Derek Gilna

            A new study by Johns Hopkins researchers found that, "The Number of U.S. prison residents who tested positive of Coivd-19 was 5.5 times higher than the general population." This will come as no surprise to those at Butner, where 25 prisoners have already died, as has at least one staff member. System wide, seven thousand federal prisoners have contracted the virus, and 700 infected staff members have carried the virus  home, passing it to the general population. The federal prison system, beset by decades of mismanagement and inadequate medical care,  appears powerless to stop the spread.

            FCI Forrest City, which has seen similar levels of infection, has been made into a special testing facility, with prisoners as the subjects of the study.   Unlike most other compounds, the CDC at Forrest City has tested virtually everyone, and erected large tents on the recreation yard to allegedly segregate positive cases from those that were not positive. Although DOJ states that CDC is solely there to provide care and treatment, it is not, and instead is separating prisoners into different buildings, giving them varying levels of care, and then observing, which one participant called being akin to "human guinea pigs."

            Prison Legal News (PLN) also disclosed on July 1 that a secret document "raises risk factors, security levels of prisoners." PLN said that the document is apparently being "used to evaluate the security levels of prisoners, leaving some who qualified for release to home confinement stuck in prison during the ...pandemic with little explanation of how they were evaluated."

            In the 10th Circuit in US v Cantu, 19-6043, 7-6-20, the court held that Cantu was entitled to relief on his claim that he was not an ACCA, despite the fact that he had not preserved the claim in the district court, finding "plain error." Reversed and remanded. In US v Stewart, 19-60624, (5th Cir. 7-9-20), the court held that FSA does allow defendants convicted of certain crack cocaine offense to be resentenced as if the reduced statutory minimum penalties implemented by the Fair Sentencing Act of 2010 were in place," and granted relief, but plenary resentencing was not required.   Reversed and remanded.

            In US v Denson, 19-11696, (11th Cir. 6-24-20), the court reduced a crack conviction brought under FSA from 262 to 188 months, but concurred with the 5th and 8th Circuits that a full (plenary) resentencing was not required. The 4th Circuit in Braswell v Smith, 952 F.3rd 441, (4th Cir. 3-4-20) expanded the Savings Clause of 2255(e) to include later retroactivity of a new rule not in effect at the time of sentencing, finding that a wrongful mandatory minimum was a fundamental defect, requiring relief.

            Let us know what we can do to assist you in preparing and filing  your Compassionate Release petitions, and your 2255's alleging inadequate representation of counsel. 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 Shortcomings in COVID-19 Crisis Becoming Even More Evident

COVID-19 Continues Its March Through Federal Prisons, as DOJ Efforts Fall Short

by Derek Gilna

            COVID-19 cases continue to multiply in the federal prison system, while the number of cases nationally level off.   Unfortunately, most of the country's increase is coming in areas not previously hard-hit, and especially in the South and Southwest. Outbreaks continue in Oakdale, a previous flash-point, which is being locked down again, but have also hit women's facilities hard, including Coleman, Pekin, Carswell, and Waseca, among others. Shortages of cleaning supplies, transfer of prisoners, unscreened staff and supplier visits to facilities from outside, and systemic management failure in providing even basic health care, mean this problem will exist for months.. A recent ACLU study says additional prison deaths in jails and prisons could top 100,000.  

            In the Presidential race, former prosecutor Kamala Harris is  mentioned as Biden's top VP choice, which is bad news for prisoners. Harris' actions as California AG were problematic, and her selection and election would be a setback for sentence reform. However, there are signs that the current administration will take some decisive action  pre-election in the area or sentence reform to build upon First Step, perhaps even support for S 4034, "a bill to expand eligibility for and provide judicial review for the Elderly Home Detention Pilot Program, provide for compassionate release based on COVID-19."

            The question is whether the current (long-overdue) focus on police misconduct will translate into some positive action on sentence reform. My crystal ball is a little cloudy, but my guess is that the answer will eventually be, "yes." One unlikely champion of reform is the Business Roundtable, a group of 193 companies who are lobbying for a nationwide registry of rogue officers, many of whom are hired by other departments after being fired from another for repeated acts of misconduct.

            In the circuits, the 7th vacated and remanded a conviction for unlawfully possessing a firearm in violation of 18 USC 922(g)(9), citing Rehaif, and the court agreed that the definition of "misdemeanor crime of domestic violence" is quite complicated," and permitted the withdrawal of a guilty plea. Also in the 7th, in Day v US, 18-2398, the court agreed that it constituted prejudicial  inadequate representation of counsel for private counsel to reject a plea offer of 51 to 623 months, and instead went to trial and received a sentence of 92 months. 6-24-20.

             US v Triggs, 19-1704, 7-1-20. In the 6th, the court ruled that good conduct may be considered in a 3582 action under the FSA. US v Allen, 956 F.3d 355 (2020).

In US v Woodson, 19-6976, 6-24-20, the 4th Circuit overturned a denial of relief under FSA, for a reduction of sentence based upon cocaine offense prior to 2010, where 841(b)(1)(C) applied.

            If you have not yet filed your petition for compassionate release, and feel that your current health status or that of a family member at home is susceptible to COVID-19, please contact us for a review.  We also would be happy to review your case for possible relief based upon inadequate representation of counsel or a sentence affected by FSA. Let not your heart be troubled.

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

113 McHenry Rd., #173, Buffalo Grove, IL   60089 (Also in Indiana)

dgilna1948@yahoo.com, Blogging at "Derek Gilna's Criminal Justice Blog."

BOP Releases Continue as Federal Prisoner Totals Continue Decline

Releases Continue as COVID-19 Continues to Spread in Prisons; Prisoner Counts Fall

by Derek Gilna

            As COVID-19 continues its spread in federal prisons, federal prisoner counts have continued to fall as more judges grant home confinement or outright release, and fewer people come into the system. Judges can read, and I expect the releases to continue for months.

              This crisis has already led to emergency policy reforms, but DOJ is still hampered by bad data, and worse management. Less than 20% of federal prisoners, about 20,000,  have been tested. (Illinois, no model of efficiency,  tests more than that in a day.)  Eight off the top 10 virus clusters in the US are now in prisons, as prisons continue to fail to conform to CDC guidelines for best practices.  The CDC has also broadened the criteria for risk to include people with a body-mass of 30, instead of 35. There also continues to be little or no DOJ consistency transfer of prisoners from one prison to the next, with some institutions blocking movement while others continue to create problems by bringing prisoners from facilities where the virus has a foothold.

            All major polls show that 95% of Americans are  in favor of at least some criminal justice system and police reform, after the recent protests and the FBI/DOJ Russia  and  Michael Flynn scandals that exposed widespread abuse of police and prosecutorial power. Regardless of the November election results, a year from now the federal justice system will look much different than the current swampy mess.

            Although the federal courts are operating at reduced capacity and few in-court proceedings except for emergencies, the circuits have been busy. In the 9th circuit, a Rehaif case did not result in sentence relief, but broadened a court's inquiry into the issue even when it was not properly raised in the district court stating, "the panel saw no basis...for limiting its review to the record adduced at trial, as the record on appeal contains additional evidence..." US v Johnson, 17-10252, 6-25-20.             In the 8th, in US v. Birdine, 19-1782, 6-22-20, the court granted FSA relief in an 841 and 846 cocaine case, and reversed and remanded for resentencing.

            Another important case in the 7th, which considers itself an incubator for legal though and precedent-setting decisions, the court incorporated language that furthered the reach of FSA: "we hold that (FSA) is its own procedural vehicle...the only limits on the district court's authority (under 404 of FSA) come from the interpretation of (FSA) itself." Nonetheless, the appeals court end up holding that the district court  did not abuse its discretion in denying cocaine-case sentence relief under the facts of this case. U.S. v Sutton, 19-2009, 6-23-20.

            Those of you with recently completed direct appeals or cases that might be impacted by FSA should consider your options, which include a 2255 alleging inadequate representation of counsel, or a petition to your sentencing court for possible sentence relief.  Have a good week, and let not your heart be troubled.

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

113 McHenry Rd, #173, Buffalo Grove, IL 60089 (Also in Indiana)

dgilna1948@yahoo.com, Blogging at "Derek Gilna's Criminal Justice Blog,"

BOP Still Botching COVID-19 Response as Transferred Prisoners Spread Disease

Federal Prisons COVID-19 Cases Hold Steady, But New Facilities Report Cases

by Derek Gilna

            While new COVID-19 cases continue to drop nationwide, the DOJ websites are reporting new cases in institutions previously spared.  Although some prison officials had been taking "victory laps" in public, certain staff members in some prisons went absent for 14-day stretches, and new transferees apparently brought the virus along with them. The takeaway is that American prisons will continue to be hotspots for the foreseeable future, ending the "nothing to see here" defense. According to the NY Times, "The number...known to be infected has doubled in the past month...and deaths...have also risen by 73 percent," with most known clusters now in jails and prisons.

            Of course, many judges will not see the need for release of vulnerable prisoners, but perhaps a well-drafted 2241 arguing conditions of confinement issues, as occurred in Elkton, Danbury, and Oakdale, will assist in getting relief.

            Although most prison reform bills are moving slowly in this election year, newly-filed S.4000, "A bill to require Federal Law enforcement and prison officials to obtain or provide immediate medical attention to individuals in custody who display medical distress," shows promise. Perhaps DOJ might assist the process by routinely testing its prisoners for the COVID-19 virus before transferring them to other facilities

            In the Supreme Court of the United States, in Lomax v. Marquez, 18-8369, June 8, 2020, the court unfortunately extended the PLRA's "three-strikes" rule to include even those dismissed without-prejudice, but of course the ruling permits one to file if the filing fee is paid.

            In US v Kelley, 19-30066. (9th Cir. 6-15-20), the court affirmed a FSA reduction based upon Fair Sentencing, but declined to extend relief to review of a career offender classification, stating that nothing in the Act required a plenary resentencing. In an unusual fact situation, the 10th Circuit reversed and remanded a conviction where the defendant had argued the "confession was involuntary because the law enforcement officer who interrogated him deceived him about having assess to the federal judge on the case." US v Young, 18-6221, June 16, 2020.

            In a case which should have broad implications for white-collar, health-care defendants, the 4th Circuit in US v. Brizuela, 19-4656, overturned a jury verdict and ruled that ;"the district court improperly admitted the testimony of patients whose treatment by (defendant) was not the basis for any of the charges in the indictment.: see US v. Kennedy, 32 F. 3d 876, (4th Cir. 1994).

            Here's a bit of positive news to help get your week off to a good start.  Former National Security Adviser John Bolton, who was fired by the President, in a  "tell-all" book to be published this week, says that, "Jared Kushner is the most important person in the White House." 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; "Derek Gilna's Criminal Justice Blog"