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 Texas
Let not
your heart be troubled.
Federal Legal Center, Inc., Derek A. Gilna, JD, Director,
