TAYLOR Supreme Court Decision Upends Many Attempted Hobbs Act Robbery Convictions, and Perhaps also State Priors; Medical Professionals Also Prevail at High Court

 

BRUEN Decision Also Casts Doubt on Felon Firearm Possession Convictions; Court's Trend Now To Limit Federal Intrusions on States' Rights; Sentencing Commission Quorum Means More Prisoner-Friendly Rules; Waiting List Starts for Our New Subscription List; Appellate Updates 

by Derek Gilna, Director of Research 

            In an important and decisive 7-2  decision in  United States v. Taylor, 596 U.S. ___ (2022), the Supreme Court of the United States (SCOTUS) swept away appellate circuit conflicts, holding that "Attempted Hobbs Act (HA) robbery does not qualify as a 'crime of violence' for purposes of enhanced sentencing under 18 U.S.C. 924(c)(3)(A) because no element of the offense requires proof that the defendant used, attempted to use, or threatened to use force."

            The court also added, "In § 924(c)(3)(A), Congress did not condition long prison terms on an abstract judicial inquiry into whether and to what degree this or that crime poses a risk to community peace and safety.  Nor did it mandate an empirical inquiry into how crimes are usually committed, let alone impose a burden on the defendant to present proof about the government’s own prosecutorial habits."

             The holding does NOT affect HA offenses that are not  attempts. My estimate is that this change will positively impact a minimum of 5000 individuals in the federal system., and also believe that a case can be made to attack state priors.  Examine your cases to ascertain if you have Taylor facts.

            In Ruan v. US, SCOTUS also struck a blow against DOJ overreach, which had swept up well-intentioned medical professionals and overcharged them.    Congratulations to them. The 9-0 decision is a harsh rebuke for the US Attorney and his minions.

            The Bruen decision raises many interesting questions as to whether federal felon-in-possession offenses (and certainly enhancements) are now subject to attack.   Bruen primarily dealt with certain gun rights in NY states, but the holding continued this key phrase: "we hold that when the Second Amendment’s plain text covers an individual’s conduct, the Constitution presumptively protects that conduct.  To justify its regulation, the government may not simply posit that the regulation promotes an important interest. Rather, the government must demonstrate that the regulation is consistent with this Nation’s historical tradition of firearm regulation." More later on this.

            Of course, the Dobbs abortion decision unleashed a lot of emotion on the topic, but I see it as part of SCOTUS broader attempt to turn some of these hot issues back over to the states, and roll back the federal government's heavy hand, ever so slowly.   After all, a federal government who can't get its prison guards to vaccinate or wear masks, keep its vulnerable residents safe, properly apply Congressionally-mandated sentence credits,  or even keep soap, cleaning material, and health hygiene supplies in stock should not be blindly trusted with more important issues like criminal justice.

            Another positive development is that the US Sentencing Commission is now able to function again, and I fully expect it to produce some enlightened guidance on the subjects of compassionate release (and other topics like 924c)  in the near future.

            In concerning news, the systemic decay of the federal prison system continues, awaiting a change to leadership that will make the hard choices necessary to bring federal corrections out of the 19th to the 21st century. FCI Big Spring has documented that most of the plumbing and mechanical systems are substandard, and dangerous, with black mold. "We are here at FPC Bryan with the EXACT same situation as what is going on at Ashland. Quarantine for unspecified rash and NO STAFF.. We have ONE case manager in our unit where there used to be 2 and ONE unit manager for BOTH the units housed in this building along with a rotating counselors who.. Rarely is any of unit team available! NO dental sick call for months.. Being told to go to sick call and then we have to bug them to try to even get antibiotics..." "I want you to know that it is bad here at Oakdale II. we have a problem with toilet paper; we are out for weeks; no staff is here now; we are back in red for covid-19; the food is going from bad to worst and has for commissary they are out of everything even the simples thing like fish, coffee, mackerel- nothing; we ask questions and get no answers." Petersburg is in code Red with over 22 cases, according to multiple sources, as is Yazoo city.

            More disturbing research is leaking out that cast doubt on the effectiveness of COVID vaccines in fighting the newest variants, and more reports of serious side-effects for those who have taken vaccines and boosters. Individuals who received two doses of the Pfizer and Moderna vaccine but had no previous infection, were found with negative immunity against both BA.1 and BA.2 Omicron subvariants, indicating an increased risk of contracting COVID-19 than an average person. Clearly, any case law that says taking a vaccine casts doubt on a compassionate release petition is now wrong on the facts.

            "The United States’ newly dominant Omicron subvariants, BA.4 and BA.5, are evading vaccine and infection-acquired immunity, scientists have found. The subvariants recently caused a fresh wave of infections in South Africa, and are pushing the U.K. to the brink of another wave of the disease.BA.5 recently became the dominant subvariant in the U.S., accounting for almost a quarter of COVID infections last week, while BA.4 made up just over 11% of new cases, CDC data showed. In a letter to the editor of the New England Journal of Medicine on Wednesday, experts from Harvard Medical School’s Beth Israel Deaconess Medical Center (BIDMC) outlined their findings from a recent analysis of 54 individuals’ antibody protection against various Omicron subvariants. subvariants. Of the participants in their study, 27 had been vaccinated and boosted with the Pfizer-BioNTech vaccine, and 27 had been infected with either the BA.1 or BA.2 Omicron subvariant a median 29 days earlier. All but one of the participants who had recently been infected with the virus had also been vaccinated." https://www.bloomberg.com/news/articles/2022-05-30/s-africa-had-fifth-covid-wave-despite-97-antibody- protection. The original study is at: https://www.nejm.org/doi/full/10.1056/NEJMc2206576.

We are in the process of creating a specialized site for individuals needing more specialized research assistance, which will not replace but supplement the current newsletter, available on an annual subscription basis at modest cost, for both you and your families. Stay tuned! 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 a retired  attorney not currently licensed to practice in any jurisdiction.) Blog:  "Derek Gilna's Federal Criminal Justice Musings and Reflections."

EQUAL Act Negotiations Continue, as Congress Poised to Act with or Without the White House's Participation

 

Happy Father's Day and Juneteenth; EQUAL Act Negotiations Continue; Keys to Sentence Relief; Prison Conditions Deteriorate, While White House Dithers, Congress Takes Action; "Right To Trial" Act Introduced; COVID Update 

by Derek Gilna, Director of Research 

            With the holidays of Father's Day and Juneteenth occurring this week,  our attention is focused on providing the research necessary to ensure you celebrate these holidays next year at your home. Although it may be hard to discern from your current perspective, there are many more avenues to relief than four short years ago, and the odds of sentence relief will only increase as the Sentencing Commission restarts its work.

            The federal criminal justice system does an efficient job of arresting, prosecuting, and imprisoning tens of thousands people every year. Despite that fact, crime continues, and rises and falls without any apparent relationship to the number of arrests. The reason is clear; it does not exist to reduce or even deter crime, but to highlight federal dominance and power. Federal criminal justice agencies are overly political, haughty, and disrespectful of basic human rights, and actually despise each other.  Until the late 60's the federal prison population was 50,000, for actual federal crimes. .

            The first key to relief is the First Step Act (FSA), which empowers federal judges to take a "second look" in many more instances than the "second successive" 2255 filing (which is still useful in some factual circumstances.). Second is the 2255 petition, alleging inadequate representation of counsel (currently at epidemic levels) which must be filed within a year of the end of your direct appeal or petition for cert. After that is the often-misused 2241, which can be used to enforce your sentence credits, wrongfully withheld by the prisons to people with higher security levels. We get a lot of inquiries about people's PATTERN classifications. (Note: it is of MINIMAL importance to sentence relief, although important for prison assignments and transfers.)

            Compassionate releases continue to be granted. Thanks to you and your family's efforts, Congress is well aware of the prison system's dysfunction. Serious EQUAL Act negotiations are continuing. Two key congressmen made waves in the marijuana community on Thursday by disclosing that there are high-level talks underway about putting together a wide-ranging package of incremental marijuana proposals that House and Senate lawmakers believe could be enacted into law this year. 

            And, in a touch of irony, there is renewed focus on the deplorable conditions of confinement in your prisons, thanks to focus on the hot light of publicity on the health plight of pre-trial January 6, 2021 detainees in various federal facilities, consistent with what you deal with on a daily basis. A Jan. 6 prisoner who was released by a federal judge after being denied cancer treatment for eight months is now “in dire straights,” according to his girlfriend. On March 10, 2021, Chris Worrell was arrested and charged with alleged offenses related to his presence at the U.S. Capitol on Jan. 6, 2021. According to his attorney, " Mr. Worrell, of course, received what could be argued as horrendous medical care while at the jail, and there were numerous attempts to thwart that medical care or to thwart the physicians of Mr. Worrell in regards to what treatment was needed.” When  he was released from prison, he hadn’t had any medications for eight months. At that point, he had gone from stage one cancer to stage three. Sound familiar? https://www.theepochtimes.com/jan-6-prisoner-who-was-denied-cancer-treatment-now-in-dire- straits_4502438.html?est=s8YJ1Tj5VDKsaycrB8jJWXOa6xjFQKd3HYQV6OqTFkasFE7fq1HNYmf5RIZ3d%2Bc7.

            In this environment of heightened scrutiny comes some new Congressional action. U.S. Rep. Victoria Spartz (IN-05) introduced the bipartisan ‘Right to Trial Act’ with her colleagues, including  Reps. Hakeem Jeffries (NY-08), among others. This legislation would strengthen the constitutional right to trial and mitigate abuses of prosecutorial authority in our federal justice system.

            The key provisions amend the sentencing instructions of 3553 to order to (1) instruct judges to consider "the need to protect the constitutional right to a trial, including by prohibiting impairment of such a right in any case in which an increased sentence is threatened or imposed based on a defendant’s decision to go to trial and not accept a plea offer," and (2) authorize judges "to impose a sentence below a level established by statute as a minimum sentence so as to protect the constitutional right to trial." If this passes, this will be yet another weapon to reduce sentences.

            Congress is also aware that COVID has not yet left federal prisons. Congress is well aware that  when sanitation inspectors visit correctional kitchens, they find coolers smeared with blood and sinks without soap—and still give passing grades. Medical licensure boards permit suspended (or disgraced) doctors to practice (sometimes with ankle monitors) —but only on incarcerated people. Constitutional law does not fill the gap, treating standards like a threshold for toxic particulates or the requirements of a fire code more as a safe harbor than a floor. Disgraceful. Free-World Law Behind Bars

Yale Law Journal, Vol. 131, No. 1385, 2022, UCLA School of Law, Public Law Research Paper No. 22-18, 2022, by Aaron Littman, 3-1-22.

            Prisoners in multiple prisons are forced to drink unsafe drinking water, and often cannot buy bottled water or purified substitutes:    From Waseca (but it could be Gilmer, Aliceville, or a number of places): "The water here has impacted so many.  There are more and more showing up with kidney stones... the water here is why so MANY have renal, high b.p. and renal calculi due to the high concentrations of brine.  Fatigue, joint pain, flank pain, poor output, etc.  Horrid fatigue.  AND they still refuse to allow us to purchase cranberry juice (or bottled water)."

            More evidence that heavily-funded "rehabilitation" programs are not being provided, despite millions of dollars being spent (where?). From Coleman: " There has been an interesting setback in ...rehabilitation at Coleman low.  The administration of the Low has come up with the idea that the unit libraries ...needed to be purged.  The claim is that contraband (phones, dope, usual stuff like that) was being stored in some of the books.  The solution is top deprive us of access to common use books/magazines and the like.  Covid status as RED precludes access to the institutional library (and) means we have lost access to reading material other than whatever each of us has on hand."Otisville is also code Red, with complaints about black mold.

           There is also more COVID in Lexington Camp, and no adherence to CDC guidelines:   "They have not even mass tested and we are a three story dorm environment where positives came from all ranges.....high risk inmates are being put at risk even more." Especially since COVID has never gone away, and is far from under control, epidemiologists say, and the virus is sickening and sidelining people from work or social events as it continues to spread. “People can’t come to work. People are short-staffed,” said Jason Salemi, an associate professor of epidemiology at the University of South Florida College of Public Health. “Covid-19 is still inflicting enough damage.”

            The U.S. is logging some 100,000 known cases a day, and many more are being detected via at-home tests health departments don’t track. This is a stark difference from a year ago, when U.S. cases sank below 12,000 a day, the lowest level since the first surge, as vaccinations rose and many hoped the virus was in retreat. Wall Street Journal, Copyright (c)2022 Dow Jones & Company, Inc. All Rights Reserved. 6/17/2022.

            From Ashland camp: "our RDAP unit had 19 cases of a unknown rash that went to quarantine but then it ended up within a week of that 30 more was taking to quarantine and they tell us what it isn't but not what it is. We have barely any staff left and our camp is being ran by office and kitchen staff as guards. What is really going on? We have been out of paper towels for over a week and some feminine products. We are a stand alone camp that seem to be folding by poor management We have no Doctor but one on Video on occasion. No Dentist and a lot of inmates who need one."

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."   .

BOPl Prisons are Moving to Code Red, Not for COVID Outbreaks, but Staff Shortages; Not to Worry, Says the Director-We're On It!

 

SCOTUS Criminal Justice Roundup; New PATTERN Scoring In Use in Some Prisons; Should You File a 2255? Case Updates 

by Derek Gilna, Director of Research 

            The US Supreme Court' s (SCOTUS) end of June deadline for issuing opinions at the end of its term is fast approaching.  We eagerly await what we expect to be some positive, but in all likelihood, divided (non-unanimous) opinions. Included on that

list: U.S. v. Taylor, No. 20-1459, argued in December of 2021, which asks:   "Whether 18 U.S.C. § 924(c)(3)(A)’s definition of 'crime of violence' excludes attempted Hobbs Act robbery, in violation of 18 U.S.C. § 1951(a;" Concepcion v. U.S., No. 20-1650. argued in January of 2022, asking, "Whether, when deciding if it should 'impose a reduced sentence' on an individual under Section 404(b) of the First Step Act of 2018, a district court must or may consider intervening legal and factual developments;" and from March, 2022, Ruan v. U.S., No. 20-1410 , which asked, "Whether a physician alleged to have prescribed controlled substances outside the usual course of professional practice may be convicted of unlawful distribution under 21 U.S.C. § 841(a)(1) without regard to whether, in good faith, he 'reasonably believed' or 'subjectively intended' that his prescriptions fall within that course of professional practice."

            COVID and isolated cases of Monkey Pox are in almost every prison (although numbers are hard to determine because DOJ policy is no longer testing), but that is not the reason that many prisons are going to Code Red, which means all education, programming, and most rec activities are discontinued. However, Unicor facilities still remain open. It is summer vacation season, and school is out, which mean officers get their vacation time, and facility operations are limited as a result of short staffing. Although COVID is still present, especially at Mariana, DOJ is not even attempting to keep an accurate count.

            "We, here in Victorville FCI-1, have gone back to, 'code red' and are required to wear masks everywhere.  Yard, chow hall, Unicor are still open...this is the worse medical and dental that I've ever seen.  I've been waiting for lab work (blood draw) for approx. six months.  Others can't get surgeries or transfers to facilities that would help them. " At Code-Red Aliceville (and other places) suspicious growths or lumps that could be pre-cancerous also go untested. "We are having an outbreak of Covid at FMC Atwood women's camp."  "Cactus campus update: locked down two units for Covid or variant. Code red. Medical CDC person insists on inmates wearing masking, but the staff will not wear them." "I'm here at Lexington camp and there's been 2 positive Covid tests this morning already. They haven't supplied us with soap in almost 2 months and they took away the bleach to spray down everything we touch almost 2 months ago as well... this is the 3rd outbreak." Multiple prisoners have contracted COVID multiple times, and of course, receive no treatment, and generally go to the SHU. "And still no physician at Alderson, scen of serious outbreaks and several deaths during the pandemic.

            The newest COVID variants continue to infect people across the country. "Omicron Covid-19 variants BA.4 and BA.5 are on the rise in the U.S., adding two more highly contagious versions of the virus to the mix that has fueled a springtime surge in cases. The closely related subvariants represented a combined 13% of U.S. cases for the week ended June 4, according to estimates the Centers for Disease Control and Prevention released on Tuesday. Evidence suggests the variants are yet-more contagious versions of Omicron, public-health experts said, that may be able to evade some of the immune protections people built up from infections triggered by another version of Omicron during the winter.

         " The spread of the subvariants could at least prolong the time it takes to emerge from the current wave fueled by other versions of Omicron, some health experts said.

'BA.4 and 5 may end up becoming the dominant Omicron lineages in the coming weeks or months,' said Nathan Grubaugh, an associate professor of epidemiology at Yale University’s School of Public Health. " https://www.wsj.com/articles/ba-4-ba-5-variants-rise-among-u-s-covid-19-cases-11654616069?mod=djemwhatsnews. The U.S. has recently averaged roughly 100,000 newly reported Covid-19 cases a day, according to the CDC, though epidemiologists believe the real number is significantly higher.

As prisons staff totals continue to drop system-wide, supervisors, including the lame-duck director, have begun to test creative explanations to the media and Congress, such as, " seven of the bureau’s 121 locations accounted for 40% of the vacancies," and,"Last calendar year we hired over 3,000 staff and, at one point, advance hired 1,000 staff above our funding levels,”  while ignoring that resignations and retirements in December set a record.                   According to Shane Fausey, national president of the Council of Prison Locals, there  “has been in a staffing crisis for years, ... and eerily our numbers nationwide have continued to decline.”  Fausey continued. “Our officers and employees are being pushed beyond the brink, and we cannot wait until the next director arrives to address this crisis.” www. government executive.com.           The newest PATTERN scores are apparently in use in at least some of the prisons, which appear to widen eligibility for FSA sentence credits (you know, the ones you aren't getting), by converting some Medium scores to Low. Any improvement is welcome, but it is still annoying to hear staff in many places misleading prisons as to their eligibility and who is responsible for the non-action on the year of sentence credits.          Have you come to prison recently, or recently had your direct appeal denied? Have you considered filing a 2255 habeas which concerns inadequate representation of counsel? If attorney errors prejudiced your chance for a fair trial or plea you may seek relief.          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."

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."

First Step Programming Credits Still Not Given, As DOJ Deflects, Delays, and Denies; EQUAL Act Supporters Press for a Vote Before the Election; Monkey Pox Spreads in Federal Prisons; New Pressure to Reform Broken Prison Medical System;

 

Happy Memorial Day!  Compassionate Release Decisions Have not Always "Followed the Science" On Effectiveness and Adverse Side-Effects of Vaccines, Seriousness of Long COVID. 

by Derek Gilna, Director of Research 

            Thank you, veterans ! It has been almost six months since DOJ was REQUIRED by law to award and post the one-year sentence credits for programming and employment. Congress, in  the First Step Act, unequivocally spelled out  this deadline, but prison system has only awarded credits to those who were within one year of release to avoid legal liability for confining individuals whose sentences were completed. Instead of promptly complying with the law, prison officials have blamed Grand Prairie, but the fact remains that until the hundreds if not thousands of prisoners entitled to those credits assert their legal rights, nothing will happen.

            Even those not close to release date but close to their 50% mark have a liberty interest in becoming CARES eligible before the  program goes away at some point in the indeterminate future. Your case managers and counselors, and even your wardens have NO say in this matter, and there is no point in calling Grand Prairie. Since this is a FSA-mandated benefit, send a cop out to the warden and wait 30 days before filing suit,  as with compassionate release requests, and this should be sufficient until the courts state otherwise.

            Congressional pressure to move the EQUAL Act to a vote has increased in the past week, as Republicans and Democrats who are not in leadership have begun to speak out on this necessary legislation, which overwhelmingly passed the House. Senate Majority Leader Schumer, who is desperately attempting to avoid a primary challenger from progressive superstar Ocasio-Cortez, is feeling the heat from among others, Corey Booker, who is a reliable supporter of justice reform. My feeling that this should come to a vote before the election, but certainly shortly thereafter.

            To no one's surprise, the newest virus, known as Monkey pox, is spreading in federal prisons.   Unlike Omicron, the symptoms of this cannot be passed off as simple flu, as it also produces large fluid-filled blisters along with  flu symptoms.

            Human-to-human transmission of the virus is known to occur, but is less common. The virus isn’t especially infectious between humans as it requires very close contact to spread, (like in prisons?) and people are only contagious when they have symptoms, Dr. Whitworth said. Still, it could spread within a close-knit community, he added. Symptoms of Monkey pox include fever, headache, muscle aches, chills and exhaustion. A chicken pox-like rash can develop, beginning on the face then spreading to other parts of the body, such as the hands and feet. The rash eventually forms scabs, which later fall off. Most people recover after a week or two although the disease can be deadly. Vaccines have not been found to protect from this virus. https://www.wsj.com/articles/monkeypox-outbreak-widens-in-europe-11652901073.

            " We have been on lockdown for supposed to be covid 19 protocol ..... lies, lies, and more lies .......... the 8th case of monkey pox is here @ bennettsville........ they are trying to hide it as not to scare the general public but its real and factual."

            COVID and its variants continue to infest numerous prisons, including Waseca, Ashland, Lexington, Phoenix, Elkton, Terre Haute,, and others, as institutions continue in red status, but uniformly do not test, since positive tests mean it would have to be reported on the national website.

            Prison watchdogs are gathering information as Congressional critics of the federal prison system sharpen their pencils for the next oversight hearings, which will focus on the near total breakdown of the prison medical system. Despite years of understating medical problems, as well as systematically altering medical records to downplay deteriorating prisoner health, the system's  the wheels are almost ready  to fall off.  Years of headline -grabbing drug "taskforces," entrapment of non-contact SO's, and  questionable long sentences given to non-violent offenders, all used to grab more dollars from a gullible public and a nervous Congress,  have all contributed to this mess.

            Where has all the money appropriated for medical care gone?  Certainly not to Carswell, where elderly and chronically and terminally ill women languish in beds when they could be home with their families. Hundreds of women are treated by two doctors and one gynecologist. Routine tests of people with terminal heart disease and cancer-like symptoms are either delayed or not carried out. All the impressive program statements in the world mean nothing if they are not followed.

            In March 2022, the Department of Justice Office of the Inspector General (OIG) issued a report on audits of three medical service contracts for over $300 million “Although (DOJ) told us that it did not identify any significant problems with ...performance related to the timely delivery of inmate healthcare and quality of care (Huh?), we found that it did not have a reliable, consistent process in place to evaluate either the timeliness of inmate healthcare or the quality of that care," and "faced challenges in transporting inmates to off-site appointments which resulted in a frequent need to reschedule appointments that could delay an inmate’s healthcare," and did not, "have systems in place to track and monitor the causes for rescheduling appointments," or "a process in place to monitor how long an inmate waited to receive care after a cancelled appointment...we believe it is difficult for the (prisons) to determine whether inmates are receiving care within the required community standard.” These are all issues that a first year MBA student could solve. https://oig.justice.org/sites/default/files/reports/22-052.pdf.

            Also in the same report: " One institution has been without a pharmacist for most of 2022 due to being out on medical leave. The result according to the submission to OIG is that “We now have several psychiatric patients decompensating daily. We also have many diabetics, hypertensives, cardiomyopathy and HIV inmates that have run out of medications and have no way of refilling them until they, as well as emergent issues, or are lucky enough to communicate the need to executive staff, or custody staff who communicate it to Medical...we have more than 750 unfilled prescriptions."

            We have received numerous inquiries to provide official data on the effectiveness of COVID vaccines. A new study has concluded that while vaccinated people who get breakthrough COVID-19 infections are less likely to become severely ill or die, they still can develop the serious, lingering problems known as Long-COVID. “The constellation of findings shows that the burden of death and disease experienced by people with [breakthrough infections] is not trivial,” say the authors of the study published this week in Nature Medicine. In general, it found that, six months after infection, a significant number experienced serious problems affecting areas such as the heart, lungs, kidneys, mental health and brain function. Vaccinated people were less likely to come down with long-term lung problems and blood clots, but their rates for the other problems were similar to those of unvaccinated people who got COVID-19. Ziyad Al-Aly, the lead author and a researcher at VA Saint Louis Health Care System, called the findings “disappointing. I was hoping to see that vaccines offer more protection, especially given that vaccines are our only line of defense nowadays,” he said.

            The authors also compared the long-term problems experienced by people hospitalized with breakthrough COVID-19 with those of people hospitalized with regular flu, finding the COVID-19 patients were more likely to have long-term problems.

The authors said the findings shed light on the previously murky question of whether vaccinated people who get breakthrough infections can end up with long-COVID.

 https://www.nature.com/articles/s41591-022-01840-0.

          The underreported nationwide toll of adverse reactions to COVID vaccinations continues to mount, with the number reaching 820,787 (US), through May 20, 2022, including 13,045 deaths, according to the VAERS (Vaccine Adverse Events Reporting System). https://openvaers.com/covid-data.

Clemency Again a Hot Topic in Congress; Federal Prisoner Wins 7-Year Reduction with FSA Petition

 

House Holds Clemency Hearings; First Step Motion Unlocks Seven-Year Sentence Reduction; Update on Sentencing Credits; Sentencing Project Study Highlights Skyrocketing Female Incarceration; New Director Will Come From Outside the System; DOJ  Fails Women, and Conceals Recent Covid Outbreaks; New Studies Highlight COVID Vaccine Suppresses Normal Immune System; Supreme Court Update;  by Derek Gilna               Members of the House subcommittee on the Judiciary heard testimony from experts pressing the White House and Justice Department to increase the rate and diversity of federal clemency grants. Witnesses also testified about the need to reform the Office of the Pardon Attorney.  Congress urged Pardon Attorney Elizabeth Oyer to release disaggregated demographic data on the more than 17,000 pending clemency applications by June 7, 2022, on all pending clemency applications detailing applicant demographic data, month and year of application submission, representation by an attorney, type of clemency request, type of relief sought, type of offense(s), and office currently reviewing application. These petitions often remain on the books for years until granted or denied, but pressure is growing to clear the backlog.             A recent motion for sentence relief based upon the First Step Act (FSA) unlocked a seven-year sentence reduction, based upon our teams. research and drafting, such that the government was forced to resort to unsuccessfully argue 3553 factors after the beneficiary had completed dozens of classes, had an excellent institutional record, and enjoyed strong family support. The facts of every case are unique, but perhaps a similar result is waiting for you.             Many of you are still puzzled as to why those FSA programming credits, which should changed your outdates as of January 15, 2022.  Unfortunately, this willful failure fits the pattern of DOJ non-compliance with many sentence-relief laws, putting pressure on prison staff to deflect, deceive, and delay. File your remedies, and be prepared to go to court to get those credits.             Unfortunately, this pattern of non-compliance with the law and basic human rights spills over to substandard medical care, as well as abuse in many different forms. Research by the Sentencing Project  on female incarceration shows that the number of incarcerated women was nearly five times higher in 2020 than in 1980. Between 1980 and 2020, the number of incarcerated women increased by more than 475%, rising from a total of 26,326 in 1980 to 152,854 in 2020, nationwide. Sadly, the federal prison system has mishandled this increase, as claims of medical neglect (see: Carswell, Aliceville, Waseca, etc.) and outright abuse (see: Dublin) have skyrocketed .             In a positive development, the new federal prison director will come from outside the federal system, and will not be a former CO, like the current director. Gary Mohr, who has also worked in the private prison industry, is at the top of the list of candidates to replace Michael Carvajal, who submitted his resignation in January but said he would stay on until a successor was named, the people said. A final decision has not been made and it’s unclear when an official announcement would be put forward.             Covid counts continue to increase, as has prisons' lack of transparency.  FMC Carswell has just been put into "Yellow Level" for COVID.  A town hall meeting  stated it had nothing to do with COVID inside of Carswell,  but was due community spread and the rise in cases in the area. However, outside sources indicated that there were 5 staff positive at Carswell according to the DOJ website.             At FCI "Cactus Land," masks were issued and the prison went into Code Red, matching the county. According to one, "Many vaxed guys in units have Covid again and some say it is worse this time. However, no more moving to a quarantine unit. But probably no cases on the website because the Health Service does not test anymore, so no tests means there are no cases to report.  Guys just lay in bed with it a couple weeks until it is over."  As this newsletter has detailed, there is no longer a scientific foundation for denial of compassionate release based upon availability of vaccines, since vaccines do not uniformly protect anyone for Covid and the symptoms are not less, despite the assertions of Fauci and the White House..             Stephanie Seneff, Ph.D., a senior research scientist at MIT who has been at MIT for over five decades, discusses her latest paper, “Innate Immune Suppression by SARS-CoV-2 mRNA Vaccination,." co-written with Dr. Peter McCullough, along with two other authors, Dr. Greg Nigh and Dr. Anthony Kyriakopoulos. Those researchers note that there has been a serious increase in long-term side effects from the COVID vaccines, including the well known problem with blood clotting, and the fear is that in the rush to inoculate large numbers of people without long-term studies on possible side-effects, authorities might have unwittingly caused more long-term problems. Researchers also state, even the natural immunity from the milder OMICRON virus, " may be canceled out in those who have received multiple COVID jabs... Each dose erodes your immune response, such that it becomes increasingly compromised with each jab." In fact, regulators in the European Union are now warning that repeat COVID shots can weaken overall immunity. Business Standard January 12, 2022, Frontiers in Immunology April 14, 2021 DOI: 10.3389/fimmu.2021.656700, www.epochtimes.com.              The US Supreme Court  moves toward its summer break in late June, with a decision expected on United States v. Taylor, 20-1459, out of the 4th Cir., argued in December, and asking: Whether 18 U.S.C. § 924(c)(3)(A)’s definition of “crime of violence” excludes attempted Hobbs Act robbery, in violation of 18 U.S.C. § 1951(a).Other cases seeking to resolve the widening circuit split regarding the meaning of "extraordinary and compelling circumstances," are slowly working their way to the SC.  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, 113 McHenry Rd. #173, Buffalo Grove, IL   60089 (and Indiana); 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."

Sentencing Commission Vacancies Finally FIlled: Two Positive Compassionate Release Developments

 

Sentencing Commission Reactivated by Biden Nominees; Oregon Judge Grants Compassionate Release, Citing "Excruciating" Conditions of Confinement;  Battles for FSA Sentence Credits Continue; Two New Supreme Court "Relists" Seek to Expand 2241 Retroactivity; Appellate Updates 

by Derek Gilna 

            In very positive news, the White House announced on Wednesday a bipartisan list of seven nominees to fill the federal sentencing body that hasn’t had enough members to do its work since 2019. One of the nominees is Carlton Reeves, a federal judge in Mississippi, who would be the first Black chairman of the Commission. John Gleeson, the former federal judge and reform advocate, is also nominated.  The Commission has lacked a quorum to make sentencing changes for several years, much to prisoners' detriment. The commission in recent years showed itself willing to make positive changes when Congress lacked the political will to do so.

            The Sentencing Commission also recently published charts showing that the grant of Compassionate release varied widely from district to district, and often within districts, with about 20% of all petitions being granted.

            A federal district court judge in Oregon recently issued a scathing opinion,  finding that Oregon federal prisoner James Lee Wood, 53, served significant periods of his sentence in federal prison without access to his psychiatric medication or received medication that made his symptoms worse with no recourse. U.S. District Judge Michael W. Mosman this week granted James Lee Wood compassionate release, calling his prison term “an excruciating experience.”

             "For reasons stated on the record, I find Defendant Wood has provided extraordinary and compelling reasons for compassionate release and that the 18 USC 3553(a) factors weigh in favor of compassionate release. Accordingly, the motion is granted. " Wood v. US, 18-599, D. of Oregon, 2-25-21.

            In Charlemagne v. US, 18-cr-181, (D. of Conn, 5-7-22), the court also granted compassionate release. "On October 29, 2020, this court sentenced defendant Timothy Charlemagne to 41 months in prison...(and) recommended that Mr. Charlemagne be "housed at a facility that accounts for his medical condition," including "chronic ulcerations under both of his feet and at the ends of both his big toes that require . . . [debridement] of the wounds every 3-4 weeks, (since) failure to continue this course of treatment 'could leave him subject to amputation,' (but) the BOP has failed to treat his conditions appropriately at every step of the way. On February 22, 2022, following the development of gangrene in his right foot, the toes on that foot had to be amputated. In light of: (1) the fact that the BOP has repeatedly demonstrated its inability to provide adequate medical care for Mr. Charlemagne and (2) the court's consideration of the applicable section 3553(a) factors below, the Motion is granted."

            We have previously commented about how many courts are now apply FSA more expansively to grant sentence relief. Since the First Step Act was passed, federal courts have diverged in how they interpret their roles and responsibilities under section 404(b). One group of circuit courts interprets section 404(b) to provide limited discretion to the district court and, therefore, the appellate court need only review the district court’s decision under a deferential abuse-of-discretion standard.  The second group interprets section 404(b) to provide district courts with broad discretion to resentence defendants in a manner similar to an initial plenary sentencing, which appellate courts are required to review for reasonableness.

            COVID and its variants continue to infest almost all federal facilities. As noted by  one observer, " I am pretty positive that there are a lot of Covid cases here at Edgefield right this moment but the facility is not testing nor recording them. It's a lot of inmates walking around sick but are scared to go to medical."  Sound familiar? Another at  Ray Brook FCI said, "we are operating on code red because of the 'outside community' and this means we have to go to chow and get a pre-made tray and walk directly back to our units, we are on the unit 23 hours a day." So much for rehabilitation and programming.

           My personal mission to find reliable data from ANY agency or reputable research group that the various COVID vaccines, ( initially touted as completely effective,) even reduces the risk of death from COVID, has failed. Although the CDC (and others, especially drug manufacturers) has flatly stated that as fact, when one examines the fine print, there are so many qualifiers as to render the CDC pronouncement suspect. (Full disclosure: I took two doses, but no booster, and still contracted the virus.)  Here is the bottom line: if you are old and have serious chronic health problems, the vaccines will not conclusively prevent you from falling ill and dying, period. And if you get sick, DOJ will not provide even the necessary minimum level of care to assist in your recovery.

            Many prisoners are seeking relief in compelling courts to grant them sentence credits provided for under the plain language of FSA. Obviously, only those with outdates in the next two years, or those who reach the 50% threshold for possible CARES consideration should consider prioritizing these petitions.

            In the Supreme Court, two pending petitions ask,  whether a habeas corpus statute, 28 U.S.C. § 2241, grants district courts authority to review a claim that a federal prisoner’s sentence is invalid, when circuit precedent foreclosed the claim at the time of the prisoner’s prior habeas motion, but an intervening Supreme Court precedent changed the construction of the statute and held that new interpretation applies retroactively. Federal prisoners raise that issue in pending petitions in Ham v. Breckon and Jones v. Hendrix.

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, 113 McHenry Rd. #173, Buffalo Grove, IL   60089 (and Indiana); 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.reckon and Jones v. Hendrix.