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."
