BOP Continues Systemic Failure, This Time by Botching Proper Application of Sentence Credits

 

New Wave of OMICRON Infections in Prison Spur More Compassionate Releases; CARES Releases Continue; Congress Investigating Continuous Lockdowns as Prisoner Families Speak Out;  Emerging Data about long-term COVID-19 symptoms: New Studies on High Prison Infection Rate Confirmed by Analyzing DOJ Statistics; Case Updates

 

by Derek Gilna

 

            Compassionate Releases in district courts have increased in the past three months, as judges have grown more skeptical of DOJ assurances that the pandemic in federal prison was "under control."  Reported cases show that more thoughtful judges are paying close attention to individual virus risk, as case totals soar at Alderson, Carswell, Butner, Aliceville, Duluth,  Rochester, Coleman, Greenville,  Dublin, and other facilities.

            Investigations have also begun not only on the DOJ failure to staff and fund a health-care infrastructure to deal with COVID, but also it consistently fails to properly diagnose and treat both serious and chronic conditions.  House and Senate Committees have both subpoena power and the power of the purse over the federal prison system. Delays in sentence credits and flawed PATTERN scores and the recent lockdowns are also under review. DOJ has responded to my newsletter by blocking my emails at Phoenix, Sheridan, and now, Danbury, saying that it is blocking them because they are a "security" issue.

            It is also clear now that DOJ is either ignorant or willfully negligent regarding the proper computation of sentence credits,. Since DOJ keeps extensive computer records of all programming activity reported by the individual institution, that information is readily available with a few keystrokes on a computer. Since DOJ has shown itself to be in violation of First Step Act provisions, I feel that this is a violation of federal law, which can be addressed by a 2241, or other means, without the need to exhaust remedies. I welcome your inquiries.

            A non-public DOJ Memo, dated December 10 and circulated to federal prisons, put more emphasis on “Sentence length,” in CARES releases, stating that it “is likely to be a significant factor” in determining who would be re-imprisoned. after release, a legally indefensible position. Interestingly, only 9 of the 4,879 people placed on home confinement under the CARES Act — that is, less than two-tenths of a percent — have been reincarcerated for new criminal conduct, but, more than 100 prison employees have been arrested, convicted of, or sentenced for crimes since the beginning of 2019. Given that the federal prisons have 36,739 employees, prison employees have a 1.5 times higher rate of alleged criminal conduct than the people the agency supervises on CARES Act home confinement, over a roughly similar period. Considering that other programs like RDAP, which gives serous sentence credit, are only offered in a minority of institutions, CARES is one DOJ program that is clearly working.

            It is also clear that the percentage of prisoners who have gotten COVID at least once is well over 50%  (and probably closer to 80%), and that OMICRON has been much more deadly in prison than in the outside world.   The reason is that DOJ refuses to treat "long Covid," a recognized medical condition in reputable hospitals and medical education centers, leaving prisoners vulnerable to repeated reinfection. High starch diets nutrition, expired food, and meager portions can only increase  prisoners' misery, illness, and death.

            Researchers in Switzerland examined the long-term symptoms of patients who had contracted SARS-CoV-2. The study used several assessment scales in data collection, including the Fatigue Assessment Scale, the modified Medical Research Council Dyspenea scale, and the 21-item Depression, Anxiety and Stress Scale Trusted Source. The vast majority of the participants — 89% — had symptoms during their period of initial infection, and 19% of the participants were hospitalized due to COVID-19 for an average of 7 days. Between 6 and 8 months after initial infection, a little over a quarter of the participants reported not fully recovering from COVID-19.

            Lead author of the study, Milo A. Puhan, MD — who is a professor of epidemiology and public health at the University of Zurich and the director of the Epidemiology, Biostatistics and Prevention Institute said, “Our data show that long COVID affects different people in different ways. About one quarter had not fully recovered after 6–8 months. While some individuals complained about persisting symptoms, others described symptoms of fatigue, dyspnea, and depression. We found that these outcomes appear to occur together only in [a] few participants, while the majority was affected by only one or two of these outcomes simultaneously.”

https://www.medicalnewstoday.com/articles/more-than-a-quarter-of-people-with-covid-19-not-fully-recovered-after-6-8-months#Emerging-data-about-long-term-COVID-19-symptoms.

            Virtually every institution has reported  high numbers of COVID cases, some with percentages of infection as high as 80%.    The following is a fairly typical overview of the past week's lockdown: " They had us... at Greenville locked down with NO communication since the 13th. They opened communication today because Region came in.  But they didn't want us reporting how many Covid cases were really here.  There were 2 alleys full of positive cases, the gym had 19 cases, the library had 7 and the chapel 5. There were over 60+ cases at one time here. They only feed us boloney sandwiches and cereal!!  I am so weak from having no real food!!  I was locked in the R&D room for 3 weeks with no heat and no hot water and no one would even come check until I sent the warden a certified letter. So yes it has been hell!!"

            The CDC has shed more light on why federal prison infection totals are much higher than outside. . According to a Center for Disease Control and Prevention (CDC) study undertaken in 2021, “... incarcerated populations have experienced disproportionately higher rates of COVID-19–related illness and death compared with the general U.S. population, due in part to congregate living environments that can facilitate rapid transmission ...” Interesting enough, the study by the CDC was conducted in conjunction with FCI Texarkana in Texas.

            CDC’s study demonstrated the potential for COVID-19 outbreaks in congregate settings including correctional and detention facilities, even among resident populations with high vaccination rates. It turns out that even those who are vaccinated are prone to being reinfected if they are in tight living quarters with those who become infected and are not vaccinated. Prisons present an environment where people are exposed to higher doses of infection that can overwhelm their dose of vaccine protection. https://www.cdc.gov/mmwr/volumes/70/wr/mm7038e3.htm.

            Prison COVID-19 infection rates among inmates are also far worse than what the DOJ is reporting and their own figures reflect that. A graph that tracks the cumulative daily infection rates of COVID-19 in institutions and DOJ segregates infections between those of staff and those of prisoners. Cases among prisoners spiked from a few hundred in mid-December 2021, as the Omicron variant spread quickly, to almost 10,000 infections by late January 2022 ... just over 6 weeks. The prisoner cases then appear to drop precipitously once hitting that peak, seemingly reflecting a miraculous recovery.  “If you look at the rates of infection among staff, who are tested daily as part of the institutional regimen or in the community where tests are more available, you will see a rise in cases in line with those of prisoners, but as the infection wanes, the reduction is more gradual, as would be expected because staff generally must test negative before being considered ‘recovered.’”  ...“(DOJ) simply is not testing prisoners to determine if or when they are recovered. Rather, they are just assuming recovery after approximately 10 to 14 days.  The rate of drop in infection among prisoners cannot be otherwise explained, particularly if you compare the trends between prisoners and staff. The problem, therefore, is that infectious prisoners are being returned to the general population." Bingo! Mark Allenbaugh, www.sentencingstats.com.

            Since December 1, 15 incarcerated people have died in  DOJ custody, including one individual each at Lewisburg United States Penitentiary and Loretto Federal Correctional Institution in Pennsylvania, one incarcerated person at the Beaumont Federal Correctional Center, two people at the Fort Worth Federal Medical Center in Texas, and three people at the Butner Federal Correctional Center in North Carolina, and four at Alderson. In addition, another two incarcerated people have died in the Coleman Federal Correctional Center in Florida. There has also been one new staff death at the United States Penitentiary in Atlanta, Georgia. www.sentencingstats.com.

            A quick summary of some new compassionate release grants: United States v. Ramos, 2020 WL 7247208, at *1 (N.D. Cal. Dec. 9, 2020), from FCI Dublin, with conviction for Tax fraud, 60 months sentence,  served 20 months; (30%), release date is August 2023;50 years old, high blood pressure, obesity, diabetes, high cholesterol. Three 3553(a) factors weigh in favor of release over time served: Medical care, No need to protect public, Not just punishment. See also: United States v. Page, 2020 WL 7258034, at *1 (D. Conn. Dec. 10, 2020), where prisoner had documented medical conditions include being diagnosed with an aortic aneurysm; needing to use proton-pump inhibitors to treat gastroesophageal reflux disease; sleep apnea (which can lead to the development of cardiac arrhythmia, heart attack and stroke); and being overweight. Given the defendant’s personal growth and change of outlook since he committed the offense conduct in the 2017 Case and his combination of medical conditions, the court believes that a sentence of time served would be appropriate after considering the applicable factors set forth in 18 U.S.C. § 3553(a).

            Also, United States v. Pacheco, 2020 WL 7261109, at *1 (D. Minn. Dec. 10, 2020), 90 months sentence, at FCI Victorville Medium II, Release date of 2024, sentenced in 2018, Former smoker, mental health, obesity. United States v. Villa-Valencia, 2020 WL 7263894, at *1 (D. Kan. Dec. 10, 2020), where prisoner was sentenced to 78 months, release date September 2021, had an Immigration detainer, was 36 years old, HIV, hypertension.    Housed at Great Plains Correctional Institution.

"But the court’s analysis today is not necessarily identical to its earlier application of § 3553(a) to Mr. Villa-Valencia. The court does not hold its analysis of each of the sentencing factors static across time. Rather, today the court considers certain non-static § 3553(a) factors when ruling on a motion under § 3582(c)(1)(A), it takes into account facts and circumstances that have emerged since the court’s original sentencing decision."

 

There are of course more decisions, which I will report next week.  

 

"We are what we repeatedly do. Excellence then, is not an act, but a habit.”   Will Durant.

 

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, firststeprelief@yahoo.com).

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

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