BOP Fiddles While COVID Burns: New Spike in National Cases Will Quickly Spread to Federal Prisons As it Did Before

 

100,000 New Covid Cases a Day Give New Impetus to Compassionate Release/CARES Releases; Infrastructure Bill Debate Dominates House and Senate Legislative Time As Summer Recess Approaches

 

by Derek Gilna

           

          While the Biden administration struggles with multiple legislative challenges, a recognized disaster at the Southern border, and other policy setbacks, and Congress approaches their Summer recess, COVID continues to dominate the national news. The U.S. is now averaging 100,000 new COVID-19 infections a day, returning to a milestone last seen during the winter surge, after averaging about 11,000 cases a day in late June. Now the number is 107,143, all of this despite a vaccine that has been given to more than 70% of the adult population. Deaths have risen  from 270 deaths per day to nearly 500 a day. https://coronavirus.jhu.edu. "Our models show that if we don't (vaccinate people), we could be up to several hundred thousand cases a day, similar to our surge in early January," Centers for Disease Control and Prevention director Rochelle Walensky said on CNN this week.www.cnn.com.                                                                                                

            The South, home to an inordinate number of federal prisons, as well as DOJ "medical centers," (don't get me started) has seen most of the increase, and many hospitals are unable to accept additional patients. Houston officials say the latest wave of COVID-19 cases is pushing the local health care system to nearly "a breaking point," resulting in some patients having to be transferred out of the city to get medical care, including one who had to be taken to North Dakota. Dr. David Persse, who is health authority for the Houston Health Department and EMS medical director, said some ambulances were waiting hours to offload patients at Houston area hospitals because no beds were available.                                                                                                                                   

         "The health care system right now is nearly at a breaking point ... For the next three weeks or so, I see no relief on what's happening in emergency departments," Persse said Thursday. https://www.tmc.edu/coronavirus-updates. The situation is similar in other Texas cities, with Austin declaring a state of emergency over the weekend. www.foxnews.com.                                                                                                  

         Alabama has also been hard hit. The state reported double-digit deaths in four consecutive days leading up to Aug. 7. The 7-day average for new reported deaths in the state was 12.6 per day as of Saturday, the highest it’s been since late May. The new bump in deaths comes as the state is in the middle of its steepest coronavirus surge yet, with cases and hospitalizations still climbing. www.al.com.                                                                                                                      

            In Missouri, 30 ambulances and more than 60 medical personnel will be stationed across the state to help transport COVID-19 patients to other regions if nearby hospitals are too full to admit them, Missouri Gov. Mike Parson announced Friday.

            Western Illinois, home to the Pekin prison complex, is also experiencing a steep rise in cases. The tri-county COVID-19 update reported 138 new and probable cases in the area. Peoria County reported 58 new cases, bringing the county’s total to 23,926 with 376 deaths. In Tazewell County, there were 69 new cases for a total of 17,561 with 298 deaths. 

            The number of guards reporting for work has declined both in the Pekin area with at least 20 cases in the women's facility,  and nationwide, as lockdowns roll throughout the federal prison system and a guard staff still only 50% vaccinated. Once again, there are numerous complaints of curious and confusing quarantine protocols, that are unevenly administered and enforced.

            Oakdale, Louisiana is another area expecting the worse, with reported cases among prisoners and staff still in double digits, but as usual only symptomatic prisoners are being tested, and prisoners have been advised to expect lockdowns of up to 21 days. Of course, DOJ websites continue to report only select numbers that do not conform to what is actually reported from the institution.

            In the circuits, in Carter v. US,  16-16829, 17-15495, August 3, 2021, Defendant pleaded guilty to possessing a firearm after having previously been convicted of a felony and was sentenced under the Armed Career Criminal Act (ACCA) based on his previous drug-related convictions. The Eleventh Circuit explained that the Supreme Court recently clarified in Borden v. United States, 141 S. Ct. 1817, 1825 (2021), that the ACCA's elements clause does not include offenses that criminalize reckless conduct; it covers only offenses that require a mens rea of knowledge or intent.

             In this case, defendant was convicted of a version of Georgia aggravated assault that can be accomplished with a mens rea of recklessness - aggravated assault with a deadly weapon under O.C.G.A. 16-5-21(a)(2) based on a simple assault under O.C.G.A. 16-5-20(a)(2). Therefore, defendant's aggravated assault conviction cannot support his classification as an armed career criminal. The court vacated the district court's sentence and remanded for resentencing.

            In US v. Jordan, 19-3620, August 4. 2021, the Second Circuit vacated the district court's order denying defendant's motion for a reduced sentence pursuant to Section 404 of the First Step Act of 2018. The court held that defendant's multi-object conspiracy conviction, with a crack cocaine object that included a drug-quantity element triggering the statutory penalties set forth in 21 U.S.C. 841(b)(1)(A), qualifies as a "covered offense" eligible for a sentence reduction pursuant to the First Step Act. "Therefore, defendant's 254-month sentence on his multi-object conspiracy conviction is eligible for a sentence reduction under Section 404(b)". The court remanded for further proceedings.

            In US v. Saladino, 20-1563, August 4, 2021, the Second Circuit vacated the district court's denial of defendant's motion for compassionate release, holding that 18 U.S.C. 3582(c)(1)(A)'s exhaustion requirement is not jurisdictional. The court clarified that the administrative exhaustion requirement is not a jurisdictional limitation on a court's power to consider an inmate's motion for compassionate release. Rather, section 3582(c)(1)(A)'s exhaustion requirement is a claim-processing rule that may be waived or forfeited by the government. In this case, the government withdrew any defense based on defendant's prior failure to exhaust his administrative remedies. The court remanded for the district court to consider his motion on the merits.

            We also revisit the case of Bridges v. US, 991 F.3d 793 (7th Cir. 2021, )where the 7th CIrcuit held that Hobbs Act Robbery (HAR)  is NOT a  crime of violence for career offender enhancement, and also indicated that it was likely inadequate representation of counsel for the defense attorney not to have anticipated that development. The court noted that HAR is not a qualifying robbery because of the inclusion of property in the offense. The cases also cited the new Career Offender Guideline and the 19th Circuit Case of US v. O'Connor, 874 F.3d 1147, which also said HAR did not qualify under the new career Guidelines.  

            Be not afraid and let not your heart be troubled.

 

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

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

dagilna1948@yahoo.com (English newsletter and ALL inquiries, English or Spanish)

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Blog:  "Derek Gilna's Federal Criminal Justice Musings and Reflections."