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Another
area that has been negatively impacted has been prisoner nutrition. The
national menu is almost never followed, in any institution, and this combined
with chronic commissary shortages, has had a negative effect on prisoner
health This is reflected in the high number of OMICRON and DELTA related
infections and deaths among prisoners in the past two or three months.
According to one prisoner: " food is terrible - expired milk, moldy bread, not
following BOP national menu at all for the last
three weeks." This
combined with spotty or non-existent prison health care, makes federal
prisoners as a group vulnerable to COVID. Turns out that it is not our imagination
that prisoners are more vulnerable to OMICRON than the outside world. "
The Consequences of Incarceration for Mortality in the United
States," by Sebastian Daza, Alberto
Palloni, and Jerrett Jones, published in Demography ,
www.ncbi.nim.nig.gov, states the obvious: "an emerging line of research considers
the consequences of incarceration for individual’s health and well-being.
Recent studies find that those with an incarceration history report higher
chronic health problems (Schnittker & John, 2007), lower self-reported
health (Massoglia, 2008a), higher obesity (Houle & Martin, 2011), more
infectious diseases, stress-related illness (Massoglia, 2008b), and
psychological disorders (Massoglia & Pridemore, 2015). The
tragic infection and death rates at Alderson and Carswell could have been
avoided if DOJ had actually had an "Action Plan," that was not
merely a piece of paper to be with the
courts, but an actual training program circulated to Regional and prison
authorities. With the pandemic now approaching two years, one would think
that DOJ would actually have a clue on what to do, other than "Mixing
and Matching" positives and negatives, based upon what staff have
themselves told prisoners at many locations. Amazingly, both Alderson and
Carswell continue to have more NEW
infections, and they are certainly not alone.
FPC
Duluth has yet another outbreak, and its neighbor FMC
Rochester has seen "official" cases for prisoners climbing well
above 50, and approximately half of that for staff. Peterson, Yazoo City,
Thompson, Camp Lee, Butner-all units, Oakdale, FCI Schuylkill, ALiceville, Gilmer,
and Pekin, both men and women's affected, with all these instituions in Code
Red, with full, or almost full lockdowns, and high levels of infection. Weren't we told by the government,
and now certain federal courts, that if you are vaccinated, you are not at
risk? Not so fast: In early August
2021, the director of the Oxford Vaccine Group, professor Sir Andrew Pollard,
actually spoke out against the idea that the COVID shots were the answer
everyone was looking for. At the time, he referred to the idea that
vaccine-induced herd immunity against COVID was “mythical.” As reported by
Yahoo! News, Aug. 10, 2021:4 “… Pollard … said … that herd immunity is ‘not a
possibility’ with the current Delta variant. He called the idea ‘mythical,’
warning that vaccine programs should not be developed around it. During that
same APPG meeting, professor Paul Hunter from the University
of East Anglia stressed that
variants capable of evading the COVID shots were “an absolute inevitability.”
Pollard and Hunter both turned out to be correct, as Omicron’s
vaccine-evading capacity has now been documented. Yahoo News, Aug. 10, 2021.
Current methods of PATTERN
classification are also under review. US Attorney General Merrick Garland has
directed the department to look for ways to assess racial bias and make the
tool more transparent, a spokeswoman said. One option is to adjust the cutoff
points between the risk categories, allowing more prisoners to earn credits
for release, which would "maximize access to First Step Act relief while
ensuring public safety," she said. DOJ has to reevaluate the 14,000 people in
prison who got lumped into the wrong category. "This is just one example
of the ways that harmful artificial intelligence systems are being rolled out
in everything from the criminal legal system to employment decisions to who
gets access to housing and social benefits," said Sasha Costanza-Chock,
director of research and design for the Algorithmic Justice League, which
studies the social implications of artificial intelligence.
In US
v Benton, 19-7471, (4th Cir., January 24, 2022), the Fourth
Circuit reversed the district court's denial of defendant's 28 U.S.C. 2255
motion seeking to vacate his sentence. The district court found that
defendant qualified as an armed career criminal by relying on prior
convictions that were not identified as predicates in defendant's presentence
report and of which he had no notice at sentencing. The court concluded that
the district court's finding was contrary to United States v. Hodge, 902 F.3d
420 (4th Cir. 2018), which held that the government cannot rely on collateral
review on ACCA predicates that were not identified at sentencing, in order to
preserve an enhancement that no longer can be sustained by the original
predicates. Because there was a Hodge violation in this case, the court
vacated defendant's 18 U.S.C. 922(g) sentence and remanded for resentencing.
In US v.
Freeman, 19-4104, ( 4th Cir. January 25, 2022), on rehearing en
banc, the court vacated defendant's sentence for possession with intent to
distribute hydrocodone and oxycodone. Instead of pursuing defendant's
objections, counsel relied entirely on a motion to enter a drug court
diversion program (the BRIDGE program) that could have permitted defendant,
if admitted, to enter treatment instead of going to prison. The court
concluded that defendant clearly received ineffective assistance of counsel
where counsel was unequivocally wrong on the law when he waived her
meritorious objections to the PSR on the ground that none of those objections
reduce the number that is relevant to this court. Rather, if successful,
defendant's objections would have reduced the low end of her Sentencing
Guidelines range by almost ten years. Because counsel's deficient performance
prejudiced plaintiff, the court remanded for resentencing. In US
v White, 19-4886, ( 8th Cir. January
27, 2022), White was convicted of being a felon in possession of
a firearm. In determining White’s sentence, the district court applied the
Armed Career Criminal Act (ACCA) 18 U.S.C. 924(e), based on three prior
convictions for “violent felonies,” including Virginia
common law robbery. The court imposed the ACCA’s mandatory minimum sentence
of 180 months’ imprisonment. White argued that he did not qualify as an armed
career criminal because Virginia
common law robbery can be committed without the actual, attempted, or
threatened use of physical force, by threatening to accuse the victim of
having committed sodomy. The Virginia Supreme Court responded to a certified
question: Under Virginia common
law, an individual can be convicted of robbery by means of threatening to
accuse the victim of having committed sodomy “if the accusation of 'sodomy’
involves a crime against nature under extant criminal law.” The Eighth
Circuit then vacated the sentence. Virginia common law robbery can be
committed without proving as an element the “use, attempted use, or
threatened use of physical force,” an element required for prior convictions
to qualify as predicate offenses under the “violent force” provision of the
ACCA.
"Act like what you do makes a difference. It does." Henry James.
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."
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