BOP Buckles Under Congressional Pressure: Are Big Changes Coming Soon? First Step Act Releases Begin

 

Congress Tightens the Screws on Federal Prison System, Thousands Are Released of by First Step Act;  PATTERN System Revision Probable; Biden Now Owns the Prison COVID Crisis; Supreme Court News: Appellate Updates

 

by Derek Gilna

 

            The First Step Act (FSA) is the gift that keeps on giving. The past week thousands of federal prisoners "packed out" as the federal prison system, under heavy Congressional pressure, finally implemented FSA's sentence credits based upon PATTERN scores. Thousands more should be released in the coming weeks.

            This hopeful development overshadowed last week's House Judiciary Committee meeting, which featured a host of anti-incarceration speakers and medical experts who catalogued DOJ's institutional failure to  bring its rogue agency under control.  According to Chairman Jerry Nadler, "many questions also remain about whether the PATTERN tool, which ...(determines) an inmate’s eligibility to receive Earned Time Credits, has been sufficiently validated by independent experts.  I look forward to hearing from our witnesses on this important question. I also look forward to examining the ... troubling (DOJ)  response to the COVID-19 pandemic and its inability to protect inmates and staff adequately." This could get interesting soon, in a very good way, based upon the testimony of reform professionals and activists, which notably did not include a DOJ representative.

            One witness called prison illness and death figures grossly inaccurate: "on any given day, advocates, lawyers, and people living behind bars can identify people that they know have died but who are not reflected in the publicly reported data. ...Bree Eberbaugh and Rebecca Marie Adams,  (were from) FPC Alderson when they died.... On December 1, 2021, there was only one reported infection at the institution. But by December 15, 2021, there were 56.6 And by December 26, 2021, there were 124.7 As of January 19, 2022, the number remains at 71.8 Although (the website said) that approximately 184 people have 'recovered,' —assuming this data is accurate—for a prison with a population of 677, these current numbers suggest that approximately 38% of the population has been or is currently infected with COVID-19. (Probably more like 80%.) https://docs.house.gov/meetings/JU/JU08/20220121/114349/HHRG-117-JU08-Wstate-GuernseyA-20220121.pdf.

            Another witness highlighted DOJ confusion at implementing its "Action Plans": "A July 2021 report (on the) COVID-19 response, ...found that....staff reported confusion about how to implement the guidance... (the) DOJ Office of Inspector General (OIG) sent a survey to all (staff) in April 2020, in part to gather anonymous staff perspectives on the adequacy of the guidance they received...about exposure to COVID-19. Of the 28 percent of employees who responded, 59 percent of respondents thought the guidance was not clear and 53 percent thought the guidance was not timely." https://docs.house.gov/meetings/JU/JU08/20220121/114349/HHRG-117-JU08-Wstate-GoodwinG-20220121.pdf.

            The capstone on this damning testimony was that of correctional health expert, Dr. Homer Venters, who once again pointed out the systemic inadequacies in DOJ prison health care, that institutionalizes, and apparently rewards incompetence and inaccurate medical record-keeping. https://judiciary.house.gov/calendar/ eventsingle.aspx?EventID=4827                          

            Now the legislative energy wasted on Biden's socialist dream, "Build Back Better," can be redirected to an area where there is close bipartisan support of a substantial majority in Congress-federal justice reform.   Biden, unlike Trump, has been AWOL on justice reform, but the unlikely tag team of Senators Durbin and Grassley together have the power and the motivation to take the lead and taking action on the pending legislation.  Congress has sent a clear message for prisons to start granting warden-based compassionate release petitions and soon.  I also expect those dissatisfied with their current pattern score of Medium will have another opportunity to make their case for reduction in the near future.

            Alderson continues the dubious distinction of COVID-central:" my unit just had 45 out of 59 people test positive,,, on Saturday. Today 35 more tested positive out of (another unit), (with) at least 120 people in (another) who have tested positive within the last 10 days...(staff) hate to take inmates to the hospital and there (are) no nurses here at night." Carswell continues its mix-and-match policy, with the prison... after noting positive cases, mass-tested, returned returning positives to units or work details, and then again mass tested again with the Quest test; "So it appears that they let the virus run through the unit, then mass tested to see how many of us were asymptomatic." Especially disturbing is the four deaths in Alderson out of 600 women, a staggering death rate that would ignite a firestorm of anguish and panic if it happened in the outside world. Other than prisoners, weakened by poor nutrition and substandard health care, few now die OF COVID, but individuals do die from other serious diseases causes WITH COVID.  The lack of treatment for these serious conditions in prison are the biggest risk to the incarcerated.

            Four new studies highlight the dangers of COVID-19 in cramped prisons with inmates transferred among facilities, scarce testing resources and personal protective equipment (PPE), and high vaccine hesitancy at (unnamed) US prisons and jails. Late last week, Morbidity and Mortality Weekly Report (MMWR) published three studies on COVID-19 in prisons (Carswell?): https://www.cidrap.umn.edu/news-perspective/2021/04/studies-detail-large-covid-outbreaks-us-prisons-jails.

            And, "if  20 prisoners and 16 staff are being reported ...at FCI Cumberland, they are seriously misrepresenting the facts to the public. We have the entire prison locked down right now with outbreaks in more than half of our units THAT I KNOW of." Seagoville, La Tuna, FCI Ashland, Lexington, Tallahassee, Yazoo City, Victorville, FCI Cumberland, Terre Haute, and Oxford, are all in various stages of lockdown, with estimates of infections all running at 50% or more, not reflected on DOJ websites.

            It was a relatively quiet week for the US Supreme Court, and,  unfortunately, the justices refused to rule on Jarvis, although its core issues are currently pending in other, perhaps factually more favorable cases. The important Taylor case, argued in December,  asks, " Whether 18 U.S.C. 924(c)(3)(A)'s definition of "crime of violence" excludes attempted Hobbs Act robbery, in violation of 18 U.S.C. 1951(a)," awaits the court's opinion.

            In a victory for common sense, and a bit of progress for SO's,  , a unanimous Eleventh Circuit panel issued an interesting and notable ruling in McClendon v. Long, No. 21-10092 (11th Cir.  Jan. 19, 2022). "In October 2018, two deputies from the Butts County Sheriff’s Office placed signs in the front yards of the residences of all 57 registered sex offenders within the County, warning “STOP” and “NO TRICK-OR-TREAT AT THIS ADDRESS.” Three SO's sued, but the district court denied a permanent injunction and granted summary judgment in favor of the Sheriff...(The Appellate court reversed, stating) we conclude that the Sheriff’s warning signs are compelled government speech, and their placement violates a homeowner’s First Amendment rights.  Thus, we vacate the district court’s judgment in favor of the Sheriff and remand for further proceedings consistent with this opinion."

            The pending bill seeking preventing judges from  using "acquitted conduct" to enhance a sentence, is gathering new support, given the high-profile case of Elizabeth Holmes, who was found guilty of several counts of fraud, but acquitted on others. Perhaps convicting based upon "ghost dope" might also receive some needed attention. In US v Gomez, 17-20526m (5th Cir.  January 18, 2022), on remand from the Supreme Court, the Fifth Circuit agreed with the parties that, in light of Borden v. United States, 141 S. Ct. 1817 (2021), defendant's conviction for aggravated assault in Texas does not qualify as an aggravated felony under 8 U.S.C. 1326(b)(2). The court remanded the case to the district court for the limited purpose of reforming its judgment to reflect defendant's conviction and sentencing under section 1326(b)(1).

         In US v. Cozad, 20-3233, the Tenth Circuit vacated a defendant’s sentence and remanded for re-sentencing after the district court imposed a higher sentence based on the defendant’s decision to plead guilty without a plea agreement with the Government. The Court concluded that a defendant’s decision whether to enter an “open plea” does not fall under one of the factors listed in 18 USC 3553, and it was therefore procedurally unreasonable for the judge to consider that fact in imposing a higher sentence.

            Also, my personal observation, supported by numerous publications, is that there has never been a better time to get a job, especially in service industries, which often require only limited training. If you can drive, you can get a job almost immediately.

 

“Suffering has been stronger than all other teaching, and has taught me to understand what your heart used to be. I have been bent and broken, but - I hope - into a better shape.” Charles Dickens.

 

Be not afraid and let not your heart be troubled.

 

Derek Gilna, Director, JD, (De Paul Law School , 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); (Alternate email: dagilna1948@yahoo.com).

federallc_esp@yahoo.com, Spanish newsletter, but NO inquiries.

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