BOP DELTA Variant Risks to Prisoners Increases as Prisons Begin to see More Cases.

 

Biden's Lack of Urgency on Justice Reform Puts New Emphasis on "First Step" Petitions to Get Relief; Will Senate Take the Lead on Reform? CDC Issues DELTA Variant Warnings with 67, 000 new cases Last Week; Lack of Guard Vaccinations Put Prisoners at Risk; Important Case Filings in Fourth Circuit

 

by Derek Gilna

 

            It has been a bad week for the Biden administration, as sentence reform advocates

hammer the White House for lack of urgency on promised justice reforms. The  explanation for the delay in granting clemencies and pushing the bills pending in Congress is simple: spiking big-city crime, up 30% in Chicago, New York, San Francisco, Washington, D.C., and other big cities, and dipping poll numbers, making the administration fearful of being labeled "soft on crime." Reformers in the White House ask for patience, but for the moment, the path to relief lies in the courts.

            However, today Senators Grassley and Durbin announced that THEY will take the lead at pushing those many criminal reform measures through Congress if the White House does not take prompt action.

            There is no question that there is a direct correlation between a court filing for compassionate release (where valid grounds for relief exists, even if unsuccessful) and a CARES release.  I do not believe in coincidences, but I suspect that the federal prison system knows that its computerized medical records purposely understates the poor health of many prisoners, and that it actively scans compassionate release court filings for information on individuals that are truly at risk.

            Meanwhile, the DELTA variant continues to make its mark, especially among the unvaccinated, and is once again beginning its march through jails and prisons. Tallhassee, Aliceville, Carswell, Ashland, Milan, and several others have multiple cases, and prison officials are again reluctant to test. Lack of guard vaccinations continues to drive most of the increases.

            The prison in Oakdale, Louisiana, grabbed national headlines in March 2020 after a COVID-19 outbreak killed at least eight inmates and sickened more than 100 people. Sixteen months later, about 70% of its inmates have been vaccinated against the coronavirus - a rate more than double the 34% of prison staffers there who have taken the shot, according to Oakdale's union leader Ronald Morris, president of the American Federation of Government Employees Local 1007, a clear recipe for future disaster.

            A paper by Gregory Hooks of the Sociology Department of McMaster University, argues that lack of guard vaccinations and high COVID counts in prisons have directly contributed to COVID spread in communities surrounding jails and prisons.

"Mass Incarceration, COVID-19, and Community Spread," 11-1-20.

            As noted in the Wall Street Journal, "the Delta variant is perhaps two to three times more transmissible than the original virus that first emerged from China in 2019.   In the absence of any mitigating public-health measure, every 10 people infected with the original virus would go on to infect 25 people, on average.   With Delta, 10 infections would likely result in between 60 to 70 new infections."   www.wsj.com. 7-24-21.

            It appears that, "10% to 30% of all Covid-19 patients suffer from symptoms weeks and months after first getting the illness, including many young, previously healthy people, whose initial Covid-19 cases were mild.   Symptoms can include brain fog, fatigue, shortness of breath, racing heart beat, and an inability to tolerate physical or mental exertion....Most  people...have dormant, normal harmless viruses...that they contracted earlier,...Such viruses can be reactivated at times by stress, including infections." "Are Latent Viruses behind Long Covid-19 Symptoms?" www.wsj.com, 7-14-21.

            Under these circumstances, those both inside prison, those on the CARES waiting list, and those already on home confinement, would be well-advised to file  sentence reduction motions under the (so-called compassionate release) statutory provisions of 18 U.S.C. § 3582(c)(1)(A).  This would resolve the potential legal limbo in which CARES releasees  now find themselves, which could be perfectly described as constituting "extraordinary and compelling reasons" for a sentence reduction, especially if prosecutors cannot show how the 3553(a) factors would be better served by a return to prison. 

            Yet another study, a report by the governmental "Pandemic Response Accountability Committee: Key Insights: Covid-19 in Correction and Detention Facilities,"   May 12, 2021, is also critical of the government response to the pandemic. It noted that "The Centers for Disease Control and Prevention guidance recommends that facilities have three separate physical areas to (1) isolate individuals with confirmed COVID-19, (2) isolate individuals with suspected COVID-19, and (3) quarantine close contacts of those with confirmed or suspected COVID-19." https://www.pandemicoversight.gov.

            The Delta coronavirus variant surging across the United States appears to cause more severe illness and spread as easily as chickenpox, according to an internal document from the US Centers for Disease Control and Prevention. CDC Director Dr. Rochelle Walensky said, "I think that people need to understand that we're not crying wolf here. This is serious," she told CNN. "It's one of the most transmissible viruses we know about. Measles, chickenpox, this -- they're all up there." CDC  says the Delta variant is about as transmissible as chickenpox, The US averaged more than 66,900 new daily cases over the last week -- an average that's generally risen since the country hit a 2021 low of 11,299 daily cases on June 22, according to Johns Hopkins University data. "The number of cases we have now is higher than any number we had on any given day last summer," Walensky told CNN.

            In the circuits, you may recall the split Sixth Circuit panel opinion in US v. Jarvis, No. 20-3912 (6th Cir. June 3, 2021), which stated that "non-retroactive changes in the law [can] not serve as the 'extraordinary and compelling reasons' required for a sentence reduction."  However, there is nothing in the text of § 3582(c)(1)(a) that supports the contention that non-retroactive changes in the law cannot ever constitute "extraordinary and compelling reasons" to allow a sentence reduction, either alone or in combination with other factors. 

            The good news that the inimitable Shon Hopwood has filed a powerful amici brief in the rehearing en banc on Jarvis, which effectively destroys the slim majority's argument: " this Court should refrain from holding that factors are legally impermissible unless consideration of those factors conflict with the statutory text.  To do otherwise is to substitute this Court’s judgment for Congress’s.  Because a district court’s consideration of non-retroactive sentencing-law reforms as extraordinary circumstances does not contravene any contrary statutory command, it is legally permissible (and is in fact consistent with the legislative history and plain text of the First Step Act)...."

            Hopwood was one of the first advocates to note that the First Step Act had empowered judges to review former decision previously only reachable by difficult  second-successive 2255 petitions, and paved the way for thousands of prisoner resentencings and releases.   Let's hope that this argument has a similar effect.

            Be not afraid. Let not your heart be troubled.

 

Federal Legal Center, Derek A. Gilna JD (De Paul Law, 1975), and MARJ (Vermont Law, 2020), Director,   113 McHenry Rd. #173, Buffalo Grove, IL, 60089, and Indiana, dgilna1948@yahoo.com, for English-language newsletters and questions in English and Spanish, federallc_esp@yahoo.com, Spanish language newsletter only.   Blogging at "Derek Gilna's Federal Criminal Justice Musings and Reflections."