Delta Problems Continue at BOP, As Does Refusal to Test or Give Proper Medical Treatment to Helpless Prisoners

 

Criminal Justice Reform Still a Priority for Senators Durbin and Grassley, as Public Patience With Government Incompetence Wears Thin; DELTA Spread Continues; Clemency Updates

 

by Derek Gilna

 

            Senators Richard Durbin (D), of Illinois, and Charles Grassley (R), of Iowa, are an unlikely pair, but when it comes to justice reform, they speak with one voice. The two formed an unlikely bond as advocates for prison reform during the enactment of the landmark First Step Act, when Grassley was Chairman of the powerful Senate Judiciary Committee, and Durbin was the Ranking member. Now their roles have reversed, but their close working relationship may yet break the logjam of pending reform bills to be enacted, given Executive branch inaction and apparent disorganization.

            Unlike the previous President, the senescent Biden has yet to make a meaningful push to enact any of the important bills that have cleared the Judiciary Committee. He has been criticized for the lack of White House leadership on DELTA and Afghanistan's human tragedy. Since the President heads of the Executive branch, which includes both the Department of Justice and its subordinate branch of the federal prison system, this lack of leadership has helped perpetuate the latter organization's continuing dumpster fire of institutionalized incompetence.

            Durbin and Grassley are well aware of the widespread malfeasance that has aggravated the DELTA crisis and the absent or incompetent medical care that has needlessly prolonged the suffering. Although DOJ prison oversight is just one of the things on their expanding plates of responsibility, criminal justice advocates make sure that it is never far from their minds. You can help draw attention to these problems by writing  your elected Congressmen and Senators to demand action on these bills.  

            At a hearing in April, Grassley joined Democrats in voicing support for allowing inmates in home confinement to stay there. Taylor Foy, a spokesperson for Grassley, said his office had drafted legislation that month that would let “inmates moved to home confinement during the pandemic complete their sentences there rather than returning to prison after the pandemic ends.” Durbin had been among those who urged the Biden administration to instead reinterpret existing law as permitting perpetual home confinement for those inmates who were placed there during the emergency period.

            In the meantime, DELTA continues its march through the country, and its jails and prisons, with infection and hospitalization rates steadily climbing to levels last seen shortly before vaccinations started in March and April of 2021.   www.cdc.gov. Nonetheless, DOJ has also continued its practice of underreporting cases, rendering its website's numbers meaningless.  The standard institutional practice of not testing ill prisoners continues across the entire system.  Given the high rates of infections, in Southern states, it is not surprising that Bryan, Aliceville, Mariana, Coleman, Oakdale, Beaumont, Carswell, and Ashland continue to be hard hit.

            From one Texas camp: ". We are being refused  (the) Covid test. We have  several inmates and staff that have recently tested positive for Covid and yes, they had also had the Covid shot. I personally have asked for a Covid test 3 times and was told that the facility is not testing unless it was a mandatory or for emergency purposes. I got retaliated against right after I asked for a test."

            From Aliceville: "We have a major outbreak here at Aliceville FCI. The Covid 19 has arrived earlier this year and because of the poor medical care has spread like wildfire. I am unable to call, use e-mail or do video visits for about 10 - 14 days... please pray for us." Mariana: "outbreak with at least 20-30, including a pregnant woman, came from Food service and other staff not masking. There was no plan..."

            From Carswell: " As for Covid don't know the true numbers of cases here. I do know people in my unit have been sick and throwing up, but they are afraid to be seen by medical. Some are still traumatized by the ill treatment that we went through with the last two waves, and of course they are not mass testing. So we may have high numbers but inmates are afraid to speak up."

            The spread is not limited just to the South, however. From Lompoc and Terminal island there are report of numerous infections, but no testing. In Schuylkill FCI and the camp there are numerous positives and lockdowns: "All programs, rec, and commissary is suspended for at least 2 weeks. Staff still move between buildings 1 and 2 five to six times a day for counts." Waseca and FPC Duluth continue to have positive cases, and there are numerous infections at FMC Rochester and Sandstone. At FCI Ashland, "just wanted to inform you we have been scaled back to limited movements. Today 4 units have been closed due to Covid outbreak." Further compounding the misery is the decay of poorly-maintained facilities, with untreated mold, leaking roofs, un-repaired plumbing, and broken air conditioning.

            The Biden administration is  under heavy pressure to deliver on its campaign promise of increased clemencies and pardons. (There have been none to date.) With a major academic conference on the subject set for later this month, that pressure will only increase. Some officials, on conditions of anonymity, shared the following: contemplated releases are focused on nonviolent drug offenders with less than four years remaining in their sentences, the officials said. There is broad support for letting nonviolent inmates who have obeyed the rules stay at home – reducing incarceration and its cost to taxpayers.

            The Sixth Circuit,  in United States v. Cartwright, No. 19-5852 (6th Cir. 2021), granted relief to the defendant who was  serving a 24-year sentence under the Armed Career Criminal Act (ACCA), 18 U.S.C. 924(e)(1). When Cartwright was sentenced in 2005, seven of his past convictions qualified as violent felonies. In 2015, the Supreme Court’s “Johnson” decision invalidated ACCA’s residual clause. Johnson removed at least four of Cartwright’s offenses from the category of violent felonies. Cartwright brought a habeas petition challenging his ACCA status by arguing that his remaining convictions for burglary and aggravated assault do not support his ACCA sentence. The district court held that, even after Johnson, Cartwright still had at least three ACCA predicates because his Tennessee first- and second-degree burglaries qualified as violent felonies.
            The Sixth Circuit reversed. The government acknowledged that Cartwright’s claim is based on Johnson, a “new rule of constitutional law, made retroactive to cases on collateral review by the Supreme Court, that was previously unavailable.” All three degrees of Tennessee burglary include entering lawfully and then opening a “receptacle” inside, with no unlawful entry or remaining required, which extends the offense beyond generic burglary, which requires unlawful entry into or remaining in. A “receptacle” in the Tennessee burglary statute need not be attached to the house.

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)

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