EQUAL Act Passes the House, Moves to Senate; DELTA Continues to Afflict Federal Prisoners

 

House Overwhelmingly Passes EQUAL Act, Sends It to Senate; DOJ Fails to Follow CDC Testing Requirements; Lompoc Covid Class Action Continues;  Fascinating new U of C Study on How Incarceration Doesn't Reduce Recidivism;  Supreme Court Accepts New Case Seeking Wider FSA relief; New Compassionate Relief Grants for Non-Covid Grounds;  An example of how DOJ Alters Medical Records; FCI Phoenix Censors Us 

 

by Derek Gilna

 

            The US House voted 361-66 to pass the EQUAL Act to end the statutory disparity between powder and crack cocaine sentences. Now it moves to the Senate, where it enjoys considerable bi-partisan support, with co-sponsors Senators Rob Portman (R-OH), Cory Booker (D-NJ), Rand Paul (R-KY), Dick Durbin (D-IL), Thom Tillis (R-NC), and Patrick Leahy (D-VT). Although there is little opposition to the bill in the Senate (other than the usual suspect from Arkansas) no vote has been scheduled. However, it is possible if Congressional leaders, who pushed this along despite little apparent prodding from the President, might act without him.

            Senator Durbin also introduced in the past week  S. 2914:" A bill to amend the First Step Act of 2018 to permit defendants convicted of certain offenses to be eligible for reduced sentences, and for other purposes."    There is no text available but we will follow this closely.  

            Although DOJ acts as if it doesn't exist, Delta refuses to go away, as the numbers of infected continue to climb, while the number of cases in the public at large continue their decline. Thus far, there are few reported cases of MU or other variants bypassing vaccine protections, so that is a bit of good news. However, take a look at the latest excerpts from the CDC on testing protocols for correction institutions: "Ensure that separate physical locations (dedicated housing areas and bathrooms) have been identified to 1) isolate individuals with confirmed COVID-19 (individually or cohorted), 2) isolate individuals with suspected COVID-19 (INDIVIDUALLY – do not cohort), and 3) quarantine close contacts of those with confirmed or suspected COVID-19 (ideally individually; cohorted if necessary). The plan should include contingencies for multiple locations if numerous infected individuals and/or close contacts are identified and require medical isolation or quarantine simultaneously...

            Testing persons with signs or symptoms consistent with COVID-19, regardless of vaccination status: Incarcerated/detained persons with symptoms, regardless of COVID-19 vaccination status,  should be given a mask , moved to medical isolation in a separate environment from other individuals, medically evaluated, and TESTED. Facility staff should carefully evaluate and support the mental health needs of individuals before and during medical isolation. If incarcerated/detained persons receive a positive test result for SARS-CoV-2, they should remain in medical isolation until they meet the criteria for discontinuing isolation,... A single new case of SARS-CoV-2 infection in any correctional and detention center staff or incarcerated/detained person should be considered an outbreak. If an outbreak is occurring, facilities should also perform daily symptom and temperature screening for all incarcerated/detained persons who have been exposed to someone with confirmed or suspected COVID-19 until it has been at least 14 days since the last positive test. " www.cdc.com.             I am unaware of any DOJ facility that is following this protocol, hence there continue to be outbreaks and unnecessary illness, risk of death, and suffering

            Although CARES releases continue, infection numbers have climbed in the most overcrowded (or poorly-managed) facilities. From Alderson Camp: " We have 645 inmates here...positive cases that have been found in GP and moved to our Visitation Building. There is no mass testing, therefore the inmates found positive that were moved from A Building to visitation could have very possibly infected others that they cohabitated with. We are PACKED into both of our buildings, two to a cube... flights (came) in as well...There are mattresses as well as TV's now placed into our education building to stage as an additional quarantine space."

            Springfield Medical Center also has its share of problems: " We have had 25 deaths, and a couple weeks ago they had 5 officers test Positive for Covid and they said we had zero inmates with Covid. And now they are reporting only 4 inmates have Covid and that's without testing anybody, especially all the inmates that are coughing and can't get out of bed. They are refusing to test anybody and a lot of us work with sick guys that use a breathing machine to stay alive... " Another at the same prison said: " My whole unit is coughing and they won't test anybody even when we ask. Some of us work in the medical section with inmates that cant breathe already and those guys are asking to be tested so they don't put anybody in danger and they still won't test them and tell them to go to work even if they feel sick."

            Perennial hot spot Carswell had another death in the past week: "Carswell ...is out of the tests to test us...the women are complaining of symptoms but can't get tested and they are leaving them in the CC5 unit... the most vulnerable inmates...I am a care level 4 and have already been hospitalized for a month with lung problems and still have long Covid symptoms... since Monday they we have had 12 test positive we were told they are out of test so go figure..."  Tallahassee has many ill prisoners, in both the men's and women's sides, with one death,  and Victorville women's is locked down due to increasing cases. Englewood RDAP is on quarantine. From Bryan women's camp: "We are not being tested...,any guards are ill and not coming to work."  FMC Rochester has at least 5 staff and at least 5 inmates test positive. Milan is revaccinating prisoners since it appears that original shots were either contaminated or administered incorrectly.

            The long-running Lompoc class action continues, with slow, steady progress, including increased testing, transfers to reduce population, and discovery on the poor medical procedures proceeding.   We will keep a watchful eye on this litigation. Torres v. Milusnic, USDC, CD of CA, (Western Division - Los Angeles),#: 2:20-cv-04450-CBM-PVC.

            A fascinating new study from the University of Chicago published these findings:

."Based on a much larger meta-analysis of 116 studies, the current analysis shows that custodial sanctions have no effect on reoffending or slightly increase it when compared with the effects of noncustodial sanctions such as probation... All sophisticated assessments of the research have independently reached the same conclusion. The null effect of custodial compared with noncustodial sanctions is considered a “criminological fact.” Incarceration cannot be justified on the grounds it affords public safety by decreasing recidivism. Prisons are unlikely to reduce reoffending unless they can be transformed into people-changing institutions on the basis of available evidence on what works organizationally to reform offenders." https://www.journals.uchicago.edu.

            The US Supreme Court as granted cert to a new petition, 20-1650,  Carlos Conception v. US, which sets forth this question: Whether, when deciding if it should “impose a reduced sentence” on an individual under Section 404(b) of the First Step Act of 2018, 21 U.S.C. § 841 note, a district court must or may consider intervening legal and factual developments.

            Another example of why you need to make sure that your medical records accurately reflect your chronic medical problems: "Today I had a pulmonary function test because of damage to my lungs from the virus. Here's the disturbing part: I had the virus in June of 2020, the PFT wasn't approved until May 4, 2021, and then they waited another almost 5 months to do the test. When I filed for a reduced sentence because of my risk from the virus and the damage done, the prison said I didn't have any damage because my medical records didn't say I had damage. The court believed them and denied my motion.

            (DOJ) intentionally delayed my treatment so there would be no record of any damage done by the virus. Now it's too late because my motion got denied and if I file again it would be useless because now they say the vaccine is fixing everything. I still have to use my inhaler several times a day. That won't ever go away. And they wonder why I don't trust government employees, like I'm wrong for not trusting them."

            One of the many new cases reducing sentences based upon FSA considerations, with no Covid justification is United States v. Lizarraras-Chacon, No. 20-30001 (9th Cir. 2021  )In 2011, Chacon was charged with conspiracy to possess with intent to distribute 1,000 grams or more of heroin and possession with intent to distribute 100 grams or more of heroin. The prosecution moved under 21 U.S.C. 851 to increase the mandatory minimum sentence based on his 2010 Oregon drug conviction for which Chacon was sentenced to 90 days in jail. Chacon entered a plea agreement. The parties jointly recommended a total sentence of 210 months of incarceration. His total Offense Level included enhancements for possession of a firearm, aggravating role as a leader, and using children in the offense. The resulting applicable guideline range was 210–262 months. The court sentenced Chacon to 210 months’ imprisonment.
            The district court rejected his motions for 18 U.S.C. 3582(c) sentence reduction, based on Sentencing Guidelines Amendment 782, which reduced most base offense levels in the U.S.S.G. 2D1.1 Drug Quantity Table. The Ninth Circuit reversed. The legislative and judicial developments affecting mandatory statutory minimums are relevant considerations to the 18 U.S.C. 3553(a) factors at step two of a motion for reduction of sentence under 18 U.S.C. 3582(c)(2). The district court apparently believed that it did not have the discretion to consider such developments.

            FCI Phoenix, apparently unhappy that we reported the accurate Covid counts at its institution, blocked our newsletter, but this will not deter our continued reporting of facts, not government propaganda. (Keep the alternate email of dagilna1948@yahoo.com close, just in case.)    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."