BOP COVID Numbers Hold Steady: Mandatory Minimums On Biden's Radar?

 COVID-19 Infections Continue To Climb in Federal Prisons While Declining Elsewhere

 

by Derek Gilna

 

            CDC studies show that individuals in prisons are  4.7 times to contract and die from COVID-19 than the general population.  There are many reasons for this and not just DOJ incompetence in controlling the virus. First, DOJ health care ranges from poor to non-existent, Second, as a result, studies also show that federal prisoners are not a healthy group, with a higher incidence of diabetes, obesity, heart disease, dementia and other mental illness, and other serious chronic illnesses that exponentially increase their chance of death from COVID-19, or even just a common influenza. Those with two or three such medical "co-morbidities," potentially death-causing conditions, are at increased risk.

            And, if you do contract the virus and survive, studies have shown that it will seriously reduce your overall health and increase your chance of early death. New radiological evidence and scientific studies show that "COVID-19 can cause the body to attack itself,"  https://news.northwestern.edu /stories/2021/02/radiological-images-covid; https://abc11.com/health/medical-images-show-covid-attacking-body-new-study-finds/10350794/.

            The other wild card for prisoners is the newer strains of the virus, which may very well be incubating in a prison near you.  Scientists have written that confined areas with high rates of infection, low rates of vaccination, and which  have people traveling to and from are perfect spots for the new virus to take hold. "Vaccination Delays Promotes Strains,"   Wall Street Journal, 2-22-21.

            There is some evidence that this has already happened in Minnesota. On January 9, 2021, the Minnesota Department of Health (MDH) announced the identification of the SARS-CoV-2 variant of concern (VOC) B.1.1.7, also referred to as 20I/501Y.V1 and VOC 202012/01, in specimens from five persons; on January 25, MDH announced the identification of this variant in specimens from three additional persons. The B.1.1.7 variant, which is reported to be more transmissible than certain other SARS-CoV-2 lineages.  https://www.health.state.mn.us/news/pressrel/2021/covid010921.html.

            Studies have shown that those who have "recovered," or show no active symptoms, are often afflicted with "long COVID,"  a condition which is only starting to get more attention. https://www.wsj.com/articles/the-challenges-of-getting-long-covid-patients-back-to-work-11613350801. Those with this condition are also prone to reinfections, as happened in Lompoc, California, Elkton, Oakdale, Waseca, and elsewhere. https://www.webmd.com/lung/news/20201012/first-confirmed-us-case-of-covid-reinfections. These changed circumstances can "open the door" to new CR filings if you were previously rejected.

            Serious outbreaks continue at Ft. Dix, which still measure in the hundreds, Carswell, Rochester, with over 400 cases (out of 600 prisoners), and Coleman, where 85% have or have had the virus, and which continues under a lockdown. The recent total breakdown at Texas prisons has also contributed to the misery at Carswell, with no heat, water, working toilets, and limited personnel. DOJ continues its quiet campaign of seemingly random prisoner vaccinations, often using doses rejected by guards, but continue to violate most CDC protocols for employee testing, social distancing, transfer of personnel, and proper quarantining procedures, meaning that the virus will be in federal prisons for many months to come. "COVID-19 Management Assessment and Response Tool for Correction and Detention Facilities," www.cdc.gov.

            The ACLU and other prison reform advocates are ramping up the already considerable pressure on Attorney General-Designate Garland, who is facing Congressional confirmation hearings today. "Reducing the federal prison population will require substantial changes to DOJ charging and sentencing policies," the ACLU said in a letter to Garland. " Perhaps the single most impactful action you can take, if confirmed as Attorney General, to begin to reduce mass incarceration is to stop charging mandatory minimums. (You) will have the authority to expand the 2013 Holder memo, which gave prosecutors discretion to avoid charging mandatory minimums in certain drug cases... You can also direct prosecutors to stop seeking a trial penalty," and stop opposing all compassionate releases. More on this next week.

            In  US v. Hogsett, 982 F,3d 463m (7rh Cir. 2020) the court joined the First and Fourth Circuits,  which have already ruled that FSA modified 841(b)(1)(C) holding that any crack offense qualifies for sentence relief. In US v. Burnley, 19-4176m (4th Cir. 2-19-21), the court vacated and remanded a manager and supervision leadership enhancement while affirming a drug conspiracy conviction.

            One of the recurring issues is whether or not you have been wrongfully sentenced based upon ineffective assistance from your defense attorney. Here are five ways of analyzing your case to see if this was the case: (1 Your lawyer made decision without consulting you; (2 Your lawyer filed notices late; (3 Your lawyer behaved unprofessionally; (4. Your lawyer never responded to you; (5 Your lawyer got terminology or procedure wrong, perhaps showing cognitive decline (dementia); (6 Your lawyer never explained why you should or should not plead guilty/go to trial. There are of course other instances, which we would be pleased to review.   There are time limits for such filings, generally one year after the completion of your direct appeal.

            Be not afraid, and let not your heart be troubled.

 

Federal Legal Center, Derek A Gilna, JD, MARJ, Director,

113 McHenry Rd.   #173, Buffalo Grove, Illinois 60089 (and Indiana)

dgilna1948@yahoo.com, blog "Derek Gilna's Criminal Justice" Blog, Google blogspot

BOP Hurtles Towards Its Day of Reckoning for COVID Failures; Justice and Clemency Reform On Horizon

 "Status Quo" of Justice Reform, Blown Up by Trump with FSA, Will Never Return, as Reform Heats Up; Legislative, Supreme Court Updates

 

by Derek Gilna

 

            A common concern of many of you is whether the new President will follow through on his pledge to continue the reform of the federal justice system. The answer is an unequivocal "Yes," but not for the reasons you might think.  The  influence of corporate America, who has endorsed mass incarceration for decades, has lost its veto power on reform. If mass incarceration destroyed millions of disadvantaged families and people of color,  enriching corporate America in the process, that was just a price of doing business.. We'll make that up by outsourcing to China, at a cheaper cost, they said, and our sons and daughters will have nice jobs in NY, Chicago, Washington, D.C., and in DOJ, where they can perpetuate the "status quo."

            The Criminal Justice system, and the federal government in general, has a voracious appetite for people, and money. To "feed the beast," keep prisoner numbers high, and add some "diversity" to the prison population, they can and do selectively target and crush non-politically-connected white collar defendants. Enter Donald Trump (and senior adviser Jared Kushner,  son of a jailed property developer).

            Prior to Trump, the Mitch McConnell-like corporate politicians had blocked or "slow-walked" meaningful justice reform for years. Trump's First Step Act forever changed the paradigm for sentence reform, and is being used every day  to reduce sentences by judges not afraid to revisit prior decisions which made some of them squirm in discomfort.

            This is the new normal, and Biden, no innovator, will continue the new trend.

It is unlikely that the federal prison system will be untouched as the reforms move ahead.  As the country recovers from its COVID-19 nightmare, and Biden's advisers settle in, there will be a day of reckoning for those responsible for the hundreds of deaths, and tens of thousands of imprisoned individuals whose health will never be the same due to gross mismanagement, and yes-a massive cover-up.

            For those of you with prior health problems, or something that doesn't feel quite "right," I would not waste any time considering a CR.   Many underlying health problems are being ignored by prison health officials, but as "Michelle" recently found out, a well-timed CR petition can bring about your release. Others, like "Kendall," won release based upon serious health problems for family members at home.

            With reform skeptics like McConnell effectively sidelined, the most prominent voices,  Republican Charles Grassley and his Democratic counterpart, Dick Durbin are pushing the "COVID-19 Safer Detention Act," which I expect to pass this year.  It would: clarify that the percentage of time served required for the Elderly Home Detention Pilot Program should be calculated based on an inmate’s sentence, including reductions for good time credits (H.R. 4018, which passed the House by voice vote last Congress); expand the eligibility criteria for the Elderly Home Detention Pilot Program to include nonviolent offenders who have served at least 50 percent of their term of imprisonment; subject elderly home detention eligibility decisions to judicial review (based on the First Step Act’s compassionate release provision).

            Also, for those of you considering clemency, I would wait no longer.   A bi-partisan push for eliminating 13,000 clemencies and setting up a new process for review is well under way, but there is no timetable for when this will come to fruition.

            The Supreme Court has two important cases on its docket, including Bates v. United States, No. 20-535, which asks the Court to decide whether cocaine base defendants getting resentenced under the First Step Act should get resentenced under modern sentencing guidelines, or under repealed, invalidated, or otherwise discarded sentencing rules. Terry v. United States, No. 20-5904, asks whether certain low-level cocaine base offenders are eligible for  resentencing. 

            In the circuits, in US v Armstrong, 4-cr-634, (USDC of SC, Florence Div.), the court granted a FSA reduction in a non-violent drug case where he had 18 ounces of crack, and minor state priors. In US v. Wheat, 19-4172, (6th Cir. 2-12-21), the court reversed a conspiracy drug conviction, finding a "buy-sell" relationship, and remanded for resentencing. In US v. Nebinger, 19-1504, (7th Cir. 2-11-21), that although his Rehaif claim was waived, the recent Ill. SC decision that the Illinois residential burglary offense is NOT violent opened the door to a resentencing.

            Patience is required for those who filed paper 1040 returns, as the IRS struggles with its backlog. Fear not, and let not your heart be troubled.

 

Federal Legal Center, Derek A. Gilna, JD, MARJ, Director

113 Mc Henry Rd.   #173, Buffalo Grove, ILL 60089 (and Indiana)

dgilna1948@yahoo.com, blogging at  Derek Gilna's Criminal Justice Blog

BOP Incompetence Reflected in COVID Spikes at Carswell, Pollock, Rochester, and Other Prisons; Additional Stimulus Bill Close to Passage

 

Third Stimulus Check of $1400 Probable: FMC Carswell and other Facilities Stagger Under New COVID Outbreak

 

by Derek Gilna

 

            A third stimulus check, for $1400, appears probable, but is NOT yet final. .   However, it is still unclear how and when individuals in custody will receive it, If you previously received at least one of the checks, you should receive this one via the same means and at the same address as previous payments. It becomes even more important to get your 2020 1040 on file, so that you get into the IRS computer system and then provided to the Treasury Department for their disbursements. More details to come.

            Federal prisoners during the COVID-19 pandemic have lived with the dangers and dehumanizing effects of  bureaucratic bungling on a daily basis, but the current outbreak at FMC Carswell is a test for even the most determined. The Fort Worth Star Telegram has taken the lead in exposing the extent of the tragedy there, noting that it had the "second most COVID-19 cases out of all federal prisons...behind only Pollock FCI in Louisiana (285)." However, the true number is probably closer to half of Carswell's 1300 women, and doesn't even account for those getting ill for the second time, or  those who have "recovered" suffering from untreated long-term side-effects, a national disgrace. . FCI Tallahassee also continues to suffer, with all units reporting high infection county and on lockdown.   There are so many cases that there is no way to isolate them in a special unit. CDC and other outside agencies are now on site. FMC Rochester and other sites continue to report cases in the hundreds.          

            DOJ is still clueless as to how to stem the up and down trend of infection and reinfection, and poorly positioned to fight the newest variants of the virus, predicted to become common by March.   DOJ clearly has NO PLAN in treating those with long-tern symptoms, and continues its policy of deliberately undercounting the infected (See FPC Duluth, showing one case, when there are closer to 40, with others in the hospital).  CDC also recently noted that schizophrenia is the 2nd highest risk factor for dying of the virus, after age. Journal of JAMA Psychiatry, February, 2021. The inability (or unwillingness) of DOJ to properly segregate the infected, an erratic testing procedure, and official indifference, persists everywhere. Compassionate Releases will clearly continue to be an important avenue for relief for many months to come.

            U.S. Attorneys offices around the country have been instructed by DOJ to prioritize locating and prosecuting suspects in the Capitol siege, (other than other offenses?)  while the agency braces for probable marijuana legalization in the near future, the legislative elimination of the disparity between powder and crack cocaine,  and the prospect of defending thousands of new prisoner filings if the changes are made retroactive.

            I get many questions from those who fear that Biden will be Obama 2.0 when it comes to broad reform: a lot of hype with only minor reforms. However, Trump "blew up" the old way of looking at sentence relief with FSA, forcing Biden to think bigger.  His DOJ will look much different, as more progressive officials like Vanita Gupta and Kristen Clarke begin the task of reshaping the agency.   Will he go bold and appoint a new prisons director?. Another key is getting more progressive U.S. Attorneys appointed in districts where offices have been used as "farm teams" for young, ambitious, and often ruthless prosecutors seeking higher office on the backs of overcharged defendants.

            Although DOJ seems determined to limit sentence credit for work and institutional educational programs, this will come under intense Congressional scrutiny.   Also remember that Pell grants will soon be available for those seeking to further their education while imprisoned., an important development.

            One area where DOJ will probably not change is in its hunger for money, a strange priority in a federal government where a billion dollars is often treated as a rounding error. The DOJ playbook on white-collar matters is simple: blame a problem, like opiods, on a deep-pocket defendant that they can tap for millions, like Purdue Pharma ($573 million), while trolling for small-fish to criminally prosecute to get headlines.   Also, is a national scandal brewing on what the government does with the moneys forfeited by defendants, but never finds its way to "victims?"  

            Fortunately, courts are still carefully considering petitions for relief based upon FSA language and "covered offenses." An interesting case asked the question of  whether a conviction for a "dual object conspiracy is a 'covered offense' under Section 404(a)"  and granted relief. U.S. v. Winters, 20-30138, (5th Cir. 2-3-21).  In US v. Sherwood, 20-4085, (6th Cir. 2-2-21), the court remanded an SO case for resentencing after a CR request was denied, citing the lack of proper explanation for the denial. 

            Be not afraid, and let not your heart be troubled.

 

Federal Legal Center, Derek A. Gilna, JD, MARJ, Director

113 McHenry Rd. #173, Buffalo Grove, IL   60089 (and in Indiana)

dgilna1948@yahoo.com, blogging at "Derek Gilna's Criminal Justice Blog."

           

 

 

 

 

Biden Faces Challenges in Fulfilling Campaign Promises on Justice Reform, and The Biggest Will Be Reining in the Dysfunctional BOP

 Expect Steady Progress from Biden on Justice Reform, As He Outmaneuvers the Criminal Justice Bureaucracy That Thinks It Runs the Country, Not the People.

 

by Derek Gilna

 

            Although the thought is rarely spoken out loud in Washington, make no mistake-even high government officials are afraid of the criminal justice bureaucracy.   The past four years show us that that unelected career officials at DOJ have felt free to harass and bully even the powerful with impunity. As the events at the Capitol in early January proved, however, all (perceived) power has its limits. The security at the Capitol, which in recent years resembled airport security on steroids, was breached with relative ease. DOJ was reduced to begging for assistance from the public in identifying the perpetrators, and people did what they always do-talk. Arrests have been made, but the damage caused by the images puncturing the false aura of bureaucratic invincibility can never be undone.

            The public has taken notice. Although the electorate is evenly divided on many issues,  opinions on criminal justice are almost unanimously in favor of federal sentence relief, up to 87% according to a recent ACLU survey. The DOJ fights this sentiment in court every day, arguing with a straight face that their COVID-19 protocols are "state-of-the-art," and old, sick, non-violent individuals near the end of their sentences are "threats to society."  America deserves better, and Biden has taken the beginning steps to address this problem.

            He has reinstated the directive to AUSA's to not "overcharge," reversed by Sessions, and is expected to overturn the last-minute order issued after Barr's departure which apparently encourages DOJ to consider returning home confinees to regular custody, when COVID-19 has been tamed in DOJ (2022?, 2023?). He is also being pushed to consider a broad-based clemency structure to further reduce the federal prison population. The ACLU has spent over $100,000 to place advertisements to pressure Biden to take this bold step.  

            On January 27, 2021, Senators Booker and Durbin introduced the Quantifiably Unjust Application of the Law (Equal) Act to completely eliminate the crack and powder cocaine sentencing disparity, retroactively.   I expect  it to pass, and pass easily. Advocates are also encouraging Biden to select as DOJ prisons chief someone OUTSIDE the bureaucracy, and his choice will indicate whether he wants to institute structural reforms to reverse the failures in prison health care and COVID mitigation.

            Unfortunately, COVID-related deaths continue to pile up, as DOJ continues its practice of games-playing undercounts to mask its incompetence. (A perfect example of this is FPC Duluth, where the public website lists one case, while 40 are in quarantine, and several hospitalized, some in extremely serious condition. )

            New medical evidence now shows the top two risk categories for COVID death is age, and schizophrenia , and the new COVID strains are  70% more transmissible. Jama Psychiatry Journal, Jan. 27, 2021. Butner, Carswell, and Rochester (all with hundreds of positives) , continue to experience many deaths and infections, as erratic quarantine measures,  lack of staff training or supervision,   and non-existent medical care takes its toll. Places like Alderson and Coleman continue to experience a spike in cases.

             DOJ continues the failed practice of attempting to transfer its way out of the crisis, Forrest City moves people to Bastrop. CDC continues to try to give some structure in hard-hit institutions, like Carswell, erecting their tents, and supplementing depleted prison staff. The psychological toll on prisoners and staff continues to take its toll, and whose long-term effect will be felt for months, if not years. Will DOJ hire the medical professionals to treat these individuals?

            Positive outcomes for CRs continue, although it is a difficult process.  Judges have become more selective in their grants of relief, but appellate courts have started to overturn poorly-reasoned denials by unsympathetic judges, as well as grant First Step relief. U.S. v. McDonald, 19-7668, (4th Cir. 1-22-21). U.S. v. Hogsett, 19-3465, (7th Cir. 12-7-20). U.S. v. Hampton, 20-3649, (6th Cir. 1-19-20).  For those with restitution issues, the case US v. Lucas, 19-3427, (3d Cir. 1-20-21) looks promising, reversing a 21 USC 853 confiscation, imploring the government to "turn square corners when it exercises its power."

            This is not just a newsletter.   Every day we file petitions in court for prisoners based upon all of the research material and decades of personal experience at our disposal. Do not be afraid, and let not your heart be troubled.

            Federal Legal Center, Derek A. Gilna, JD, MARJ, Director,

            113 McHenry Rd., #173, Buffalo Grove, (and Indiana)

            dgilna1948@yahoo.com (alternate: dagilna1948@yahoo.com) 

            For those on the outside, "Derek Gilna's Criminal Justice Blog."