Justice Reform Movement COntinues to Grow; Concern Grows for Federal Prisoners as Breakthrough Infections Rise, Winter Approaches

 

Congress Prods Biden to Act on Clemency; Senate Emboldened to Seize Reform Initiative from Embattled Executive Branch; Vaccine Potency Fading Over Time; Circuit Updates.

 

by Derek Gilna

 

            When the annual Federalist Society Convention in Washington, D.C.,  a conservative legal group that has enormous influence in federal judicial selections, has a distinguished panel  discussing the inequities of the federal criminal justice system, you know that the impetus for further reform has quickened. When former President Trump overcame sentence reform obstructionist, including Senators Jeff  Sessions and Tom Cotton with the passage of the First Step Act of 2018, it empowered reform-minded Senators such as Charles Grassley, Richard Durbin, and others to push for new reforms. Some of these same Senators are also pushing hard for wide-spread clemencies of older short-timers, and are also focusing on the thousands of federal marijuana prisoners, especially from those states that have purged many marijuana convictions.

            The ongoing debate over whether to send back to federal prison thousands of people transferred to home confinement during the COVID-19 pandemic is just one factor focusing attention on the issue of presidential clemency powers. Advocates are calling on the President to commute the sentences of people on home confinement to prevent them from being returned to prison. And so far, the president appears to be open to at least a limited form of clemency.

            Now that the infrastructure bill has passed, and the smaller "Build Back Better" bill is moving towards a vote, there is a lot of energy behind the scenes for action on some of the pending bills. At the top of the list so far is the EQUAL Act, which is stalled in the Senate after receiving a rare and overwhelming bipartisan 361-to-66 vote in the House of Representatives.  This bill would eliminate the 18-to-1 sentencing disparity between crack and powder cocaine, perhaps the worst vestige of injustice in America’s drug policy.

            Why is the federal prisons system so short of money, such that prisoner meals have been reduced, commissary shelves are often bare, and payment to prisoners for some program completions like RDAP are behind? Although there has been no public announcement, my suspicion is that its budget has been depleted by both COVID expenses, and extensive overtime pay outlays, aggravated by staff resignations and the necessity for augmentation. Hopefully, this situation will be rectified by the time the new FSA programming credits are due to begin in January of 2022.

            As the weather gets colder, states such as New York, Minnesota, and Michigan are beginning to see an uptick in new COVID cases. Minnesota's governor called out the national guard as the state's hospital beds fill up. Of course, COVID, and DELTA have never left the federal prison system, as new doubts arise as to the long-term effectiveness of the vaccines. So-called "Breakthrough" infections of the vaccinated have increased, and are higher in prison due to the often shoddy and unprofessional way in which the vaccines were stored prior to being administered. Even presuming that prisoners received an effective dose, most studies show  that the vaccines are only effective a few months, and have lesser effectiveness against new variants. (Even common flu vaccines must be administered every year to maintain even modest immunity, but people still get the flu regardless.) Does DOJ have another plan for when cases begin their inevitable increase this winter? Of course, since DOJ does not test prisoners on a regular basis, there is no way to know if the disease is spreading, and the agency is apparently just fine with that.

            From the New York Times: "The New York Times on Thursday cited multiple studies showing that vaccine effectiveness begins to wane within months. A study in England found that the Pfizer-BioNTech vaccine is about 90% effective at preventing symptomatic infection two weeks after the second dose but drops to 70% effective after five months, the Times reported. 'Breakthrough infection is common, but hospitalization without underlying risk factors is still very uncommon,' said Dr. Rajinder Bajwa, chief of infectious disease and infection prevention at Niagara Falls Memorial Medical Center. 'Most people we see in the hospital have multiple underlying medical conditions.'

When it comes to the vaccine failing to prevent hospitalization, it generally means the patient is old, sickly or both."

            “Some of the people won’t respond to the vaccine because of their diseases, and some of them won’t respond to treatment. Those are a lot of the people we’re losing now,” said Dr. Thomas Madejski, former president of the Medical Society of the State of New York, who practices in Medina and Albion. “When you look at the people who have been vaccinated and do get Covid and succumb, most of them have another comorbidity that suppresses their immune system or puts them at higher risk,” Madejski said.

At the beginning of New York’s public vaccination rollout in January, shots were in short supply, and the state limited them to senior citizens and those with pre-existing conditions or jobs in professions that involved a lot of public contact. Now, it seems, that protection is wearing off, and that could be a factor in the region’s rising positivity rates.

            However, if one contacts COVID or DELTA in prison, DOJ essentially refuses to treat you for any symptoms of the disease, or "Long Covid," whereas on the outside, multiple treatments, including monoclonal antibodies. "Doctors should move aggressively to treat patients with monoclonal antibodies in the early stages of Covid to prevent hospitalization. In the last couple of weeks, it’s as bad as it’s been. I’ve treated eight people with monoclonal antibodies in the past week to two weeks. I haven’t done it ever at that level,” Madejski said. The drug is readily available and is given as a onetime intravenous infusion." www.nyt.com, www.buffalonews.com, 11-12-21.

            From the CDC: "The current 7-day moving average of new deaths (1,110) has decreased 8.8% compared with the previous 7-day moving average (1,217). As of November 3, 2021, a total of 747,970 COVID-19 deaths have been reported in the United States.. New Hospital Admissions: The current 7-day daily average for October 27–November 2, 2021, was 5,075. This is a 6.7% decrease from the prior 7-day average (5,441) from October 20–October 26, 2021," www.cdc.gov, 11-15-21.

            The reverberations from the conditions of confinement scandal in the DC jail continues to reverberate in Congress. While “a formal summary” of the inspection, conducted last month, is still being prepared, Lamont J. Ruffin, the acting marshal for U.S. District Court in Washington, told the D.C. Department of Corrections in a letter Monday that the findings “may warrant further examination” by the Justice Department’s civil rights division. Any attention given to conditions of confinement by members of

Congress can only be a positive development. In the meantime, continue to document all of these problems at the institutional-+* level with your elected representatives. At some point "the dam will break," and Congress will feel compelled to take action.

            In the circuits, the 11th Circuit opinion in US v Cook, 998 F.3d 1180, (11th Cir. 2021), echoes other circuit holdings that state that the district court must demonstrate that it considered the 3553(a) factors when denying a motion for Compassionate release.  Cook had hypertension, obesity, and Latent Tuberculosis.  

 

            Be not afraid and let not your heart be troubled.

 

Derek Gilna, Director, JD, (De Paul, 1975), MARJ, (Vermont Law School, 2020), Federal Legal Center, 113 McHenry Rd. #173, Buffalo Grove, IL   60089 (and Indiana)

dgilna1948@yahoo.     com (English newsletter and ALL inquiries, English or Spanish)

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