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"

BOP's Covid-19 Problems Continue, and Congress is Not Happy

Will Covid-19 Pandemic Finally Motivate Congress to Enact Sweeping Justice Reform?

by Derek Gilna

            Lost in the noise of the global pandemic is the real frustration felt by members of Congress who have found themselves completely helpless to influence the conduct of the federal prison system's complete ineptitude in this crisis. One of the hot issues is that the "no-testing" DOJ is STILL transporting Covid-positive prisoners without regard to the current health crisis. Of course, the inability to get straight answers from this agency come as no surprise to us, since the underlying structure is dysfunctional and wardens do as they please with little accountability to anyone, including the AG.  

            Part of the problem is that Congress gets no say in who runs the system: the President names the AG, who in turn names the director, generally picking someone who has come up through the ranks from CO. HR  6678, the Federal Prisons Accountability Act of 2020, would require the appointment of the federal prison director to be subject to the advice and consent of the Senate. Given the current political climate, and the fact that criminal justice reform is a bipartisan priority, this could pass and pass quickly.  Most other bills are currently on hold as the November election campaigning rolls on.

            Neither the recent Supreme Court "pass" on hearing the details of the FCI Elkton case, or the 6th Circuit's  vacation of Judge Gwin's very broad (and landmark) injunction against DOJ changes much, since DOJ was dragging its feet on compliance. It does not change the facts that this crisis is still very much with us and will be for months to come, Nothing that DOJ has done has eliminated the virus from prison, and re-infections will continue until prisoner counts drop substantially.   Prisons are now being blamed by mainstream media for introducing the virus into rural communities ill-equipped to handle the problem. There are no secrets in prison, as DOJ has begun to realize, as judges continue to release more prisoners, disregarding knee-jerk, non-factual DOJ arguments.

            In other words, the window for compassionate release is still wide open, and will be for many months to come, give DOJ's tenuous grasp of the staying power of Covid-19;

            In the circuits, in US v. Hodkiss, 19-1423, (8th Cir. 6-8-20), the court remanded, stating that the dc must consider if defendant was eligible for a 3553(f) safety-valve, even if relevant conduct said that he possessed a firearm in an earlier case, since the safety-valve was law, not a creation of the US Sentencing Commission.

            In an interesting case, the U.S. Supreme Court in Bannister v. Davis, in a review of a Texas state habeas case, considered the question of whether "a motion brought under FRCP 59(e) to alter or amend a habeas court's judgment qualifies as...a successive motion.   We hold it does not.  (It) is instead part and parcel of the first habeas proceeding."   This holding permits review of an adverse habeas ruling without the necessity of seeking a Certificate of Appealability with the Appellate Court, a significant 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, Google blogspot, "Derek Gilna's Criminal Justice Blog."

Supreme Court Puts Elkton Prisoner Release on Hold, While BOP Appeals to 6th Circuit

SCOTUS Issues Temporary Stay of Elkton Prisoner Release, Awaiting 6th Circuit Ruling

by Derek Gilna

            Last week the Supreme Court of the United States (SCOTUS) issued a temporary stay, authored by Justice Sotomayor, which put on hold federal district court rulings compelling the federal government to transfer 800 vulnerable prisoners from Elkton to either home confinement, or other institutions. The focus now shifts to the pending 6th Circuit ruling on government appeals of the same issues orally argued last week.

            In the districts, judges have been dealing with a deluge of Compassionate Release (CR) petitions, motivating federal prison officials to transfer qualified individuals, including several in which we were involved, to either home confinement or outright release. The COVID-19 releases show no sign of slowing down. as the disease continues its spread in federal prisons. At the Butner complex, out of 4000 prisoners, over 500 have contracted the illness. Judges, however , have largely strictly enforced the requirement of waiting 30 days after filing for CR at the prison level before considering CR court filings.

            Institutional lockdowns continue, with a few exceptions,  to restrict the flow of communications between prisoners and their family and outside contacts, which has resulted in a lot of "snail-mail," which we will do our best to answer in a timely fashion.

            As inner cities calm, SCOTUS considers whether to roll-back the doctrine of "qualified immunity," which has largely shielded law enforcement from accountability for questionable police tactics. We would expect this doctrine to be severely limited when the court considers the three related cases before it. Can the end of prosecutorial immunity be far behind?  The public no longer supports policy that accepts  police as above the law. Both political parties can be expected to reflect this in party platforms.           

           In  the circuits, the 7th Circuit issued a Rehaif decision in US v. Maez,  19-1287 (consol.), 6-1-20, wherein it ruled that "Rehaif's discussion of 'the well-known maxim that 'ignorance of the law...;is no excuse' makes doubly clear that 922g requires knowledge only of status, not knowledge of the 922g prohibition itself," rejecting the "willfulness" defense.   It let stand, the "narrower  requirement of knowledge of status."

            In the 6th, in US v Boulding, 6-1-20. the court on FSA grounds affirmed that "defendant is entitled to an accurate amended guideline calculation and renewed consideration of 18 USC 3553(a) factors, and a defendant seeking to raise objections must be afforded an opportunity to do so."    Finally, the 8th Circuit  in US v. Banks, the court affirmed a FSA sentence reduction from 55 years to 40 years, in a 21 USC 846(b)(a)(A) conspiracy to distribute 50 grams or more of cocaine base over government objections.

            We encourage all of your with recent convictions or unsuccessful direct appeals to

consider filing a 2255 habeas petition, alleging inadequate representation of counsel, in an attempt to win a lower sentence, as did one of our clients who was recently sent home.

May your efforts to win justice never cease, 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, blogging as "Derek Gilna's Criminal Justice Blog."

BOP Prisoners Continue to Get Sick and Die In Prisons As Civil Unrest Seizes Headlines

Hi-Visibility Demonstrations and Riots Knock Pandemic News Off Front Page

by Derek Gilna

            The several-month run of pandemic news dominating headlines came

to an end over the weekend, as big cities dealt with fires and looting, with regular U.S. Army troops positioned themselves alongside local police and national guardsmen. The hard work of winning Compassionate Release and sentence relief under the First Step Act still continues, but without the advantage of relentless bad publicity exposing the federal prison system.   Nonetheless, the momentum for change is too strong to be sidetracked, as many federal judges finally show themselves to take on stone-walling bureaucrats.

            Although there has been no new update on S.1380, requiring prosecutor compliance with Brady discovery mandates, the Senate will start hearings regarding "best practices for incarceration and detention during COVID-19." Should proved interesting.

Former Georgia Governor Nathan Deal has launched the bipartisan "Next Step" task force, calling for an end to mandatory minimums and other major reforms.

            Many current and former top prosecutors and police chief have urged the 6th Circuit to act decisively to fast track the release of prisoners from Elkton, after SCOTUS in a 6-3 vote refused to block the orders of judge James Gwinn to release 800.. A class action proceeds in Lompoc, California alleging "mismanaging" of the crisis there, with at least 843 testing positive. Lawyers for prisoners at the MCC Brooklyn are seeking a preliminary injunction to force the jail to meet minimal standards of medical care. Butner has seen an uptick in cases of over 400 and a string of bad press and new lawsuits. Yazoo City has been seeing am increase of infections and at least one fatality. One of my Prison Legal News colleagues at FMC Devan has also fallen ill, but is recovering.

            For months now judges have been literally bombarded with well-drafted petitions complaining of horrific conditions in the federal prison system and its tardy or non-existent reaction to the pandemic that has infected thousand of prisoners and killed hundreds. Judges must now confront the ugly truth of their over-sentencing, along with the misconduct of the prosecutors and prison officials attempted concealment of the facts

            In the circuits, in US v Smithers,19-5849, 5-26-20,  the  6th Cir affirmed the denial of FSA relief  in a Fair Sentencing fact situation, since even with the reduction Smithers' mandatory minimum sentence  he still qualified as a career offender, and the court's denial of discretionary FSA relief under 3582 was supported by the facts. It left intact, however, the fact the challenge was proper of FSA, leaving the door open for future relief in other cases. Also in the 6th Cir., in US v. Perez-Rodriguez, 18-4203, 5-27-20, the court said that in a case involving illegal reentry, the sentencing court's use of facts outside the record rendered the sentence substantially unreasonable, and reversed and remanded. In another FSA decision, in US v. Banks, 19-1750, 5-28-20, the court upheld a sentence reduction from 55 years to 40 years, of and 846 and 841(b)(1)(A) matter.

            Points to Ponder: "Always remember Goliath was a 40 point favorite over David." Never give up, never surrender. 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 Google Blog Spot as "Derek Gilna's Criminal Justice Blog."