Attorney General Falls Silent as Covid-19 Threatens Not only
Prisoners, but Neighboring Communities
by Derek Gilna
As the
Attorney General falls silent, and local prison officials complain a lack of
guidance and preparation from DOJ, Covid-19 continues to spread in prisons and
jails across the country, defying the "leveling off" of new cases and
deaths that has started in several parts of the country. There is evidence in Chicago MCC
Chicago has seen numerous cases and
deaths among both prisoners and staff. There is also real fear in the rural counties in which
most federal prisons are located that the increasing number of prison cases
will overwhelm their limited health resources. Unfortunately, this will be the
"next wave" of the disease, as the DOJ graph of new cases and deaths
continues its steep climb.
The
deteriorating situation has provokes a flood of litigation in sentencing courts
across the company, as judges sit in judgment on maters of life and death,
while facing ritualistic opposition from DOJ attorneys. Many judges have
granted relief, and more cases are awaiting decisions. Although some judges
have upheld the 30-day requirement for Compassionate Release filings, most have
not, citing the emergency nature of the pandemic. Nonetheless, it is wise to
put the prison on notice of your request, in whatever fashion you can, even
only via email. With no access to
printers, and with some prison staff discouraging applications, do what you can
to memorialize your request by emailing people outside the prison citing date
and time of your request. There is NO
need to exhaust administrative remedies, or wait for a denial to get into
court. .
Another
common question we get is whether "shots" for minor matters, or the
presence of SO or violence in your background automatically disqualifies
you. It does not. It may disqualify
you from release pursuant to the prison "list" but the judges have
the final say on whether your factual background and rehabilitative activities support your
request, and are well aware of the arbitrariness of most prison discipline.
In the
circuits, in US v. Rosa, 17-2003 (7th Cir. 4-17-20) the court vacated and
remanded the denial of a 2255 petition, finding that the district court
sentenced defendant without giving any 3553 reasons. In US v. Chaparro, 18-2513, (7th
Cir. 4-13-20 ), the court in
a SO matter vacated the conviction based upon a violation of the pretrial
confidentiality rule used for impeachment, and ordered a new trial. Finally, in US v. Allen, 19-3606, (6th Cir.
2-12-20), the court remanded a FSA denial, where Allen had argued that the
statutory minimum penalty for his drug offense had been lowered, and that
post-sentencing conduct MUST be considered in considering the request.
In these
challenging times, never give up, and let not your heart be troubled.
Federal Legal Center, Inc, Derek A. Gilna, JD, Director
Also in Indiana dgilna1948@yahoo.com ;
Google Blogspot, "Derek Gilna's Criminal Justice
Blog."
