Two Federal Prisons Closing: "Corruption and
Mismanagement" at all Levels Put Prisoners and Staff at Risk; Can Prison
System Reach Mandatory Rehabilitation Goals of First Step Act? A New Path to
Resentencings; What's Going on With Pardons? Appellate Updates.
by Derek Gilna
The recent
closing of USP Atlanta and the announced closing of MCC
New York have been portrayed by DOJ as a need to consolidate facilities and close aged and deteriorating structures,
but the real reasons they are closing is rampant corruption,
mismanagement, and illegality in a
system that has never been closer to
collapse. If the federal prison system was a business, it would have been put
out of its misery years ago in bankruptcy court or in liquidation proceedings. Plaintiff's lawyers (
full disclosure: I was one) smelling money would have seen to it.
The
COVID-19 crisis not only revealed the
limitations of even relatively well-run companies and governmental bodies, but
also that the current operations procedures of the collapsing federal prison
system are not sustainable. As a result
of this mismanagement, the programming
required by First Step to achieve sentence credits is not being offered, and
DOJ has been accused of purposely misinterpreting Congressional intent in calculating
those credits.
An
incredible story from the Atlanta Constitution outlined breath-taking
corruption at USP Atlanta, which one observer said implicated 20-30 percent of the staff, and included not only seemingly
unlimited contraband coming into the prison but also prisoners coming and going
"outside the fence," seemingly at will. The prison, which held 1800
prisoners, now houses only 134 work cadre, whose sole job is facility maintenance, the newspaper said. The 130 years old building is close to collapse.
The MCC
NY, famous for the death of Jeffrey Epstein, will also be closed “at least
temporarily,” the Justice Department said Thursday. The Metropolitan
Correctional Center
in lower Manhattan could be shut
down as soon as the coming month, sources say.
“In an effort to address the issues at MCC
NY as quickly and efficiently as possible,
the Department has decided to close the MCC,
at least temporarily, until those issues have been resolved. Planning for the
deactivation is under way, and we will have more updates as that process
continues,” a DOJ spokeswoman said in a statement.
These
actions are only just the tip of the iceberg. Prison buildings at almost all
facilities are in disrepair, with leaking roofs, deteriorating mechanical
systems, riddled with mold, and poorly maintained in the best of times. COVID
has shown that such facilities can also be hazardous (or deadly) to your health.
Contrary to
the DOJ COVID website, DELTA numbers are continuing to climb, and no real plan has been put forward to do
anything other than to let it burn itself out, regardless of the human cost. There
is little to no testing. Whole dorms of
sick prisoners in certain prisons, like Yazoo, have been
isolated from the rest of the compound. A prisoner at Alderson FPC
says "1/2 of the inmates are coughing and sneezing and very sick and no
one is being tested." Another prisoner at Elkton, which was COVID
ground-zero in 2020, says that even with that deadly history, there is no
masking by guards, half of whom are unvaccinated, and no social-distancing.
People with COVID symptoms in MCC
Philadelphia and at Waseca are placed in the SHU
for "quarantine," subject to all of the punishing restrictions that
go along with those facilities, including lack of personal hygiene and cleaning
materials, and little ability to advise family of their health status. FMC
Rochester has multiple staff and prisoner confirmed cases of DELTA. Coleman has
seen another death, cause unknown, since the prisoner's calls for medical help
went unheeded. Ashland: 7 inmates,
9 staff.
From the
highly-respected Cleveland Clinic, comes a review of COVID symptoms: " Fever
or chills, Cough, Shortness of breath or difficulty breathing,
Muscle or body aches, New loss of taste or smell, Sore
throat, Congestion or runny nose,
Nausea or vomiting, Diarrhea." Dr. Choi of that
hospital also noted instances of "Covid Toes," and rashes can also
occur: “It’s not uncommon for someone to have a viral infection and have a rash
or blotchy areas on their body. This can happen with other viral respiratory
infections like measles. And sometimes, antibiotics might cause skin rashes,”
says Dr. Choi. “It’s a different form of manifestation and it is still not very
clear what causes it. One pattern of COVID toes that people are reporting is
red lesions typically on the soles. It’s possible that this is a skin reaction
or caused by a small clog or micro clots in the blood vessels found in the
toes,” Dr. Choi says. www.health.clevelandclinic.org.
One of the
principal drivers of long sentences, even for first time offenders, in a drug
trafficking crime or a crime of violence, is the enhanced sentences to be
served back-to-back, under 18 U.S.C. sec. 924(c). See: Section 924(c)(1)(C). Section 403 of the
First Step Act clarified that these enhanced sentences should only apply to
defendants who had prior final conviction under 924(c, but it only applies to
an offense that was committed before December 21, 2018.
Notwithstanding
the non-retroactivity of section 403,district courts are now using another
provision of the First Step Act, section 603, codified at 18 U.S.C.
SS 3582(c)(1)(A), to undo the harsh sentences resulting from section
924(c) stacking. Section 603 of the First Step Act amended
section 3582(c)(1)(A)(i) to permit the defense to initiate a request for
compassionate release based on, among other things, "extraordinary and
compelling reasons." Some recent examples of district courts granting
motions for compassionate release pursuant to section 3582(c)(1)(A) to
.alleviate the harsh consequences of section 924(c) stacking: United
States v. Defendant (Yvette Wade), No. 2:99-cr-257, 2020 WL 1864906, *8 (C.D.
Cal. Apr. 13, 2020), Dkt. 637 ; United States v. McPherson, No.
3:94-cr-05708-RJB, 2020 WL 1862596, *5 (W.D. Wa. Apr. 14, 2020), Dkt. 209.
A
conference at Ohio State,
including many prisoner relief and advocacy groups working hard to break the
clemency logjam, will put increased pressure on the Biden administration to
deliver on the many pre and post campaign promises to reform the system. At
this conference, the participants will lay out a step by step plan for the
administration to actually begin the admittedly daunting task of changing the
system.
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In US
v Anderson, 20-1729, (8th Cir.
August 26, 2021, the
court affirmed the district court's order reducing defendant's sentence under
section 404(b) of the First Step Act. The court concluded that the district
court committed no procedural error in declining to further reduce
defendant's sentence where nothing in the record indicates the district court
believed it was bound to keep the sentence within the current Guidelines
range, and the district court did not deny its authority to reevaluate
defendant's criminal history category. Finally, the district court did not
abuse its discretion by failing to consider relevant and significant factors
supporting a discretionary sentencing reduction. Rather, the record
demonstrates that the district court considered defendant's arguments and set
forth a reasoned basis for exercising its sentencing discretion.
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In US v.
Hoxworth, 19-1562, (8th Cir. August
26, 2021), the court affirmed defendant's conviction for being
a felon in possession of a firearm after he brandished a stolen rifle in a
stranger's backyard. The court concluded that, even if justification can
serve as a defense to a felon-in-possession charge, the facts in this case
do not support a justification for possessing the rifle at issue. The court
reversed defendant's sentence and remanded for resentencing where the
government concedes that defendant's Texas conviction for
aggravated-assault did not qualify as a violent felony for purposes of the
Armed Career Criminal Act.
In US
v Clark, 20-1887,
(6th Cir. August 26, 2021),
Defendant robbed three banks,
stating that he had a gun. Clark was indicted under
18 U.S.C. 2113(a) for two of the robberies and pleaded guilty, and admitted
to another robbery. Based on the terms of the plea agreement, the PSR
included the Ohio robbery as
a “Pseudo Count” for calculation of Clark’s
sentencing range. For each of the three bank robberies, the PSR assessed
enhancements for a victim sustaining life-threatening bodily injuries
during the car chase and for Clark recklessly
creating a substantial risk of death or serious bodily injury to another
person in the course of fleeing from a law enforcement officer. Clark
argued the enhancements should only apply to the Pseudo Count to avoid
unlawful “triple counting,” and because there was an insufficient nexus
linking the flight in Kentucky
to the two Michigan
robberies. The court overruled these objections and sentenced Clark
to a total of 235 months' imprisonment. The Sixth Circuit vacated. There is
no explicit indication that the Sentencing Commission “intended to attach
multiple penalties to the same conduct” merely because counts are not
grouped together; the stated intent of the grouping guidelines demonstrates
that it would be improper to increase a defendant’s sentence based on the
same conduct enhancing multiple counts. The court remanded for resentencing
without application of the enhancements to all three bank robbery counts.
In US
v Braddy, 21-50185, (5th Cir. August 26, 2021), After defendant
pleaded guilty to conspiring to distribute cocaine and methamphetamine, the
district court sentenced him to 10 years imprisonment and a 5-year term of
supervised release. The written judgment listed ten statutorily mandated
conditions of supervised release, as well as seventeen conditions from a
district-wide standing order that the district court did not mention at
sentencing.
The
parties agree that the district court's judgment conflicts with the Fifth
Circuit's decision in United States v. Diggles, 957 F.3d 551, 559 (5th Cir.
2020) (en banc). Diggles held that supervised-release conditions imposed by
statute need not be pronounced orally at sentencing because any objection
to them would be futile, but that discretionary conditions must be orally
pronounced in the defendant’s presence at sentencing so that he has an
opportunity to object. The court agreed with the parties that defendant did
not have an opportunity to object to the seventeen conditions mentioned in
the district court's standing order but unmentioned at sentencing. The
court concluded that limited remand would be appropriate, granted the
government's motion to do so, and denied as moot the government's
alternative unopposed motion for extension to file its brief upon the
denial of remand.
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)
dgilna1948@yahoo.com (English newsletter and ALL
inquiries, English or Spanish)
federallc_esp@yahoo.com, Spanish newsletter, but NO
inquiries.
Blog: "Derek
Gilna's Federal Criminal Justice Musings and Reflections."
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