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