Positive Changes at DOJ under Garland and In Congress on the
Horizon; DOJ Changes Course on "Covered Sentence" Crack Cases;
Prisoners WILL get the $1400 Stimulus
by Derek Gilna
According
to the Vera Institute in 2021, "The number of people incarcerated in state
and federal prisons and local jails in the United States dropped from around
2.1 million in 2019 to 1.8 million by mid-2020--a 14 percent decrease." Of
course, unless you are one of the 14 percent this is of little interest to you,
but that silence that you hear is the public NOT objecting to all of the early
releases and home confinements. In fact, the atmosphere for further reform has
never been better. Unlike under most of Obama's and Trump's time in office, the
Democrats hold most of the levers of power, and reform has broad bipartisan
appeal.
In fact, plans
are in the works to increase funding for the First Step Act and the kinds of
educational and job training programs, including "earned time
credits," which lets people shorten the length of their sentences by
completing various programs.
The other proposed improvements is to reform an incredibly
harsh supervised release system, with invasive and demeaning monitoring and
jail time for technical offenses. Also, there is strong support for the Safer
Detention Act., the Smarter Sentencing Act, and other initiatives that expired
in the last Congress.
Newly
introduced Senate Bill 739 is a bill "to specify the state of mind
required for conviction for criminal offenses that lack an expressly identified
state of mind." If adopted, it would provide a potent defense to a lot of
often subjective and amorphous white-collar offenses.
DOJ has
also signaled that it now supports the crack retroactivity provision of the
First Step Act in SCOTUS case Terry v United States, 20-5904, which
concerns which crack offenders have a so-called "covered offense"
under Section 404 of the First Step Act that would allow for their retroactive
resentencing. This clears the way for crack-related prisoners to file for
resentencing.
Despite an
attempt to prevent them from doing so, prisoners will be eligible to receive
the new $1400 stimulus. If you filed for the stimulus before (even if not yet
received) you should receive the new payment at the same address. I do not
recommend a REFILING just because the first two payments were delayed.
One of the
unsettling factors that has contributed to the still high COVID-19 infection
rate among federal prisoners is the well documented reluctance of prison staffs
to wear masks, sanitize, and follow the DOJ directives. As inoculations have
begun in prisons, "corrections employees are
refusing vaccines at alarming rates, causing some public health experts to
worry about the prospect of controlling the pandemic both inside and outside. Infection
rates in prisons are more than three times as high as in the general public.
Prison staff helped accelerate outbreaks by refusing to wear
masks, downplaying people’s symptoms, and haphazardly enforcing
social distancing and hygiene protocols in confined, poorly ventilated
spaces ripe for viral spread." Marshall Project, 3-15-21.
(Sound familiar?)
As the new and
more deadly mutant variants of COVID-19 cross the country, prisons will be in a
poor position to resist it. Wall Street Journal, 3-12-21.
Also according to the WSJ, the failure
of DOJ to vaccinate prisoners with vaccines other than those doses refused by
guards puts the federal prisoner in a vulnerable position. "Where you have
a partially vaccinated population, or a partially immune population with lots
of virus circulating, that's kind of your danger point." said University
of Bern molecular epidemiologist
Emma Hodcroft.
Also highly
disturbing is the August 21, 2020
report by the CDC, that contains statistics submitted by three unnamed federal
prisons, along with a dozen state institutions, that show federal prisons had
among the lowest number and rate of tests administered, and the highest number
of reported cases despite that lack of testing. This flies in the face of CDC
guidance which states the following: "testing staff members at regular
intervals, regardless of symptoms, could become an important port
of...prevention...; (COVID-19) was three times higher in dormitory-based housing (42.6%) than in
cell-based unit (14.6%); (and) mass testing...occurred 2-41 days after
identification of the facilities first cases." Hagan, LM, Williams SP,
Spaulding AC, et al. Mass Testing for SARS_CoV-2 in 16 prisons and jails,
April-May 2020, MMWR Morb Mortal Wkly Rep 2020:19:1139, quoted in www.cdc.gov.
There are
many who suggest that the mass outbreaks in places like Waseca, Butner, and
Carswell were a result of "deliberate indifference," and perhaps something
even more. In it's 8-1-20
article, "What COVID-19 Prison Outbreaks Could Teach Us About Herd
Immunity," the organization noted the examples of the Holmsberg and Stateville prisons (non DOJ
facilities) in the fifties and sixties, where experiments regarding diseases
and bacteria were performed on prisoners without their consent. All reputable
health experts agree that there is no such thing as "herd immunity"
from everyone catching the virus (and hopefully recovering), UNLESS there is
vaccination rate of at least 80% of the affected class of individuals.
I encourage
people to consider not only compassionate release cases (if you feel that you
have a serious medical condition), but also 404 motions, commutation/pardons,
or all three. The COVID-19 debacle in federal prisons has alerted most judges
to the horrific conditions on the inside, (with numerous OSHA violations) which in most places, has not improved, with
high COVID counts at, among others, FMC
Rochester, and Schuylkill, which continues to require assistance from other
federal agencies.
Also, do
not overlook a 2255 habeas. In US v.
Pressley, 19-6222, (4th Cir. 3-11-21), the defendant "alleges that he
repeatedly asked his trial counsel to file a motion to suppress certain
incriminating statements he made to law enforcement officers before his
arrest." It was remanded for an evidentiary hearing, which if successful,
would result in a resentencing.
Be not
afraid, and let not your heart be troubled.
Federal Legal
Center, Derek A. Gilna, JD, MARJ,
Director
113 McHenry #173, Buffalo Grove,
Il 60089,
(and Indiana)
dgilna1948@yahoo.com,
blogging at "Derek Gilna's Criminal Justice blog."