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