Bureau of Prisons Covid-19 Release Policies Quietly Expanding

DOJ Scrambles to Spin Covid-19 Cases and Deaths but Quietly Expands Release Criteria

by Derek Gilna

            Each day of the last week has brought dizzying changes in federal prison policy relating to Covid-19 release criteria, driven not only by the Attorney General, but also public opinion, and lawsuits from both individual prisoners and federal prison guard unions. Local, rural communities adjacent to prisons rightly fear that their limited health care facilities will be overwhelmed by the disease's spread.  DOJ still has not done sufficient testing and fails to properly protect prisoners and prison employees from the deadly virus, ineptly "quarantining" sick with healthy prisoners, and "spinning" and "minimizing" the crisis. DOJ's systemic Covid failures are front-page news everywhere.

            Those "non-violent," non SO, "non-violent" prisoners over 60 who have served roughly half of their sentences, and who have CDC-defined risk factors are being prioritized, but the only certainty in this statement is that it will change, based upon other factors that REALLY drive DOJ policy: fear of bad publicity and ACLU and prisoner lawsuits. Close to 1000 have already been released to home confinement, including one who had an "escape." Prison medical treatment is so substandard that every member of prison staff should be held liable if you are denied release, and are then infected, as a violation of policy, not to mention the 8th Amendment. More on that next week.

            What if you are not on the "list?" Start the clock by filing a request for Compassionate Release, citing "extraordinary and compelling" reasons, including Covid-19, especially if you meet the aforementioned criteria. That request can be in writing or via email;   keep a copy.   If you are rejected, or the warden fails to respond in 30 days, First Step permits you to file WITHOUT exhausting administrative remedies, although never a bad idea to continue filing them.  Start working on a release plan, and gather your medical and programming evidence, as a matter of routine, for possible future use. By all

means, put prison staff on notice that your physical health is threatened by their inaction.

            Despite the pandemic pandemonium, federal courts are still all put and running, although oral arguments have been put on hold. In USDC, WD of Louisiana at Lake Charles, a class action by prisoners at Oakdale progresses before Judge Doughty, alleging DOJ misconduct, forcing DOJ to defend its practices. Livas, et al., v Myers, 20-cv-422.  

            In US v Smith, 19-1615, (1st Cir. 4-8-20), the court reversed a denial of FSA relief, after finding eligibility for a sentence reduction of a 841(a)(1), (b)(1)(C) charge,  because his offense was a "covered offense" for FSA purposes, citing supporting cases from most appellate circuits, and that the result was supported by Congress's intent.

In US v Oliver, 17-15565, (11th Cir. 4-8-20), the court reversed, stating that making terroristic threats is not a predicate violent felony under ACCA.

            In this week following Easter and Passover, let not your heart be troubled.

Federal Legal Center, Inc., Derek A. Gilna, JD, Director

113 McHenry Rd. #173, Buffalo Grove, IL (And also Indiana)

dgilna1948@yahoo.con.  Google blogspot: Derek Gilna Criminal Justice Blog

Covid-19 Federal Prison News Update

Public, Congressional Reaction to DOJ Prison Mismanaged Pandemic Response Spurs Recent Bureau of Prisons Release Drive

By Derek Gilna

           When you take away a person's ability to protect and themselves from disease, and then fail to treat them,  you own the results.   Fear, which I would argue drives most human actions, has taken over DOJ, and exposed its failures to the public at large. Although there is no doubt that Attorney General's recent memos suggesting that vulnerable prisoners will be released is a good start, we all know that the flawed classification system and shoddy and unprofessional medical record keeping leave it poorly positioned to accurately identify those individuals.

          Another serious issue is the LACK OF TESTING for Covid-19 in the institutions. By way of comparison, at Cook County, Illinois jail, which currently holds in excess of 3000 detainees, 295 prisoners have tested positive.  Although fortunately most federal facilities do not have the daily public contact of a county jail, guards and outside vendors do come and go. Clearly DOJ is not EXTENSIVELY testing for one of two reasons: (1) it lacks sufficient testing kits to do so, or (2) it is afraid of what the results of testing will show. Unacceptable.

         As of Monday morning, and these are the (minimum) confirmed figures: Danbury, CN had over 20; Oakdale, La. 75; Lompoc, 19; Yazoo City, Ms., 18; Butner, NC., 12.  DOJ said Sunday that 139 prisoners and workers have tested positive, and 7 had died.   The real figures are probably much higher. DOJ has come up with its own version of "Schindler's List," identifying 10-20 in each institution who should be released either because of age, illness, or nearing release.   It is a belated attempt to show the public and Congress that they are doing "something." Don't be fooled.   File your request for Compassionate release in any fashion possible, NOW, and seek judicial action if that request is denied.

         The U.S. Supreme Court (now working remotely), held in Davis v. U.S., 589 US_ (2020), that in a 8 U. S. C. §§922(g)(1), 924(a)(2), and possessing drugs with the intent to distribute them, 21 U. S. C. §§841(a)(1), (b)(1)(C), case, that " the Fifth Circuit’s outlier practice of refusing to review certain unpreserved factual arguments (where a timely objection was not made in district court) (was) plain error. We agree with Davis, and we vacate the judgment of the Fifth Circuit." 

        In the circuits, in US v. Phea, 17-50671, (3-31-20), the Fifth Circuit ruled in a appeal of a denied 2255 petition that defense counsel "rendered ineffective assistance by failing to object to an obvious constructive amendment," and reversed. In a SO matter, where there were allegations of violations of 18 USC Section 1591(a) and 1952(a)(3), and the court's instructions to the jury plainly reworded the indictment, the court granted relief.

       We will continue to give you the FACTS needed to debunk rumors and falsehoods.    Stay safe, and let not your heart be troubled.

Federal Legal Center, Inc., Derek A Gilna, JD, Director,

113 McHenry Rd.   #173, Buffalo Grove, IL   60089

(Also in Indiana) dgilna1948@yahoo.com

847-878-0160

Covid-19 Puts Unprecedented Pressure on Bureau of Prisons to Release Prisoners

DOJ Operations Reel Under Onslaught of Covid-19, Congressional, Advocate, and Public Pressure

by Derek Gilna

            Your voices have been heard. As the outside world does its best to stay safe, DOJ, and the publicity-adverse federal prison system,  has been inundated by hundreds of thousands of letters, emails, articles, and Congressional probing and emergency legislation to take action in this crisis. In an unprecedented move, AG Barr issued a directive to his embattled  staff of 113,000 to consider home confinement to reduce prisoner counts. As of now, there are no known updates to this directive.

            The new Corona virus relief bill signed by the President this past week permits Barr to authorize expanded use of home confinement, if he finds that "emergency conditions will materially affect the functioning of the Bureau." However, if past experience is any indicator of future performance, your letters to wardens seeking compassionate release based upon "extraordinary and compelling" circumstances (which are uniformly denied) will have to be promptly followed up by a filing with your sentencing court. Although there as yet few reported cases, some courts have already granted relief, but only in the case where requests for release are documented and well pleaded, in FSA Compassionate Release petitions.

            Ironically, Senate Resolution 549 calls for April to be designated "Second Chance Month," uncomfortably highlighting for all to see the results of decades of DOJ mismanagement, especially  of its prison health-care procedures. DOJ employee unions are also putting serious pressure on upper management to respond to the crisis, making it even more probable that if DOJ does not take decisive action, the courts can and  will. However, the courts can only rule on petitions put before them.

            In the circuits, there is some good news to report. The prisoner-unfriendly 11th Circuit has ruled that Hobbs Act robbery does not qualify as a "crime of violence" under the Sentencing Guidelines, USSG Section 4B1.2(a), vacated multiple convictions for resentencing. U.S. v Eason, 16-15413 (11th Cir. 3-24-20).

            In U.S. v Gary, the court ruled that "we hold that (his) guilty plea was not knowingly and intelligently made because he did not understand the essential elements of the offense to which he pled guilty. Because the court accepted (his) plea without giving him notice of an element of the offense the ...error is structural...(and)we vacate his guilty plea and convictions and remand..."

            The 7th also vacated a guilty plea of two men, holding that their prior state convictions were not prior drug convictions, where certain Indiana convictions were not countable as predicate drug offenses because the Indiana statute reached at least two other substances not includable under federal law. U.S. v. De La Torre, 18-2009, (10-19-19). Thanks to my fellow Prison Legal News and Criminal Legal News writer Dale Chappell, who has written extensively on this subject and is the author of a book on this very subject.             Stay safe, and Let Not Your Heart be Troubled.

Federal Legal Center, Inc, Derek A. Gilna, J.D., Director

113 McHenry Rd., #173, Buffalo Grove, Il   60089

(Also in Indiana) dgilna1948@yahoo.com

Non-Violent, Elderly, Prisoner Lease Contemplated by President and Department of Justice

The Prisoner's Guide to Surviving the Crisis; What to Expect  this Week

by Derek Gilna

            In an ironic twist of fate, the rest of the country is struggling to cope with what you deal with every day-a lack of freedom in an upside-down world. Free movement has been restricted; the streets of New York, Chicago, and Los Angeles (but not Indianapolis) are empty, (like right before "count"); supplies (but not food) are in short supply; access to health care is not a given.   No wonder that on Sunday night the President, in response to a reporter's  question, said that the federal government is seriously considering a release of non-violent and elderly detainees, echoing a similar demand from Senator and failed Democratic Presidential candidate Kamala Harris, and many others. That demand will only get louder and stronger. No one as of today has, however, been set free.

            Harris, echoing the thoughts of many of her colleagues, demanded that the AG and DOJ reveal the current ratios of health care providers to prisons, and how many virus testing kits and ventilators they have available. She also demanded that they reveal their plan for release of elderly, ill, or pregnant prisoners. So far, only the prison complex on Rikers Island in New York is seriously impacted, with 40 cases among guards and prisoners.

            The federal prison system, which is teetering on a systemic breakdown, is finally reaping the whirlwind of its own poor management and lack of compliance with Congressional oversight. What if all of the hundreds (thousands?) of recent, well-founded requests for compassionate and elderly release had been granted, instead of uniformly opposed? These people would now be with their families.          

            The Supreme Court has barred public contact, and is in an effective holding pattern.   The presiding judge of the Northern District of Illinois has issued Amended General Order 10-0012, ending all but emergency court proceedings, closing the Clerk's office, and extending all proceedings until April 6 with "ends of justice" orders. Most other districts already have, or will follow suit, effectively slowing down all but emergency matters.

            All of you with pending cases currently lodged with us or our organization can rest assured that we are racing to amend all filings to reflect the current crisis  and demanding your immediate transfer to home confinement without further delay.   Those of you who wish to file similar documents should have your families contact us to also benefit from that kind of filing. Judges do have authority, with or without the provision of the FSA, to act decisively on these matters.   Emergency motions are being heard.

            In Northern California, U.S. Magistrate Judge, Nathaniel Cousins last week outlined a procedure for reopening matters based upon the new realities, stating, "This public health crisis is serious and urgent.   Counsel should not delay in evaluating whether any defendant should have his (court proceeding) reopened."

            We will revisit the issue of how to attack your "knowing and voluntary" guilty plea in a future issue.   In the meantime, stay safe, and let not your heart be troubled.

Federal Legal Center, Inc., Derek A. Gilna, JD, Director

113 McHenry Rd, #173, Buffalo Grove, IL   60089

(Also in Indiana) dgilna1948@yahoo.com

847-878-0160

Coronavirus Forces BOP to Suspend Visitation for 30 Days

Nation Locks Down on Virus Fears;  Advocates Push for Mass Release of Incarcerated Elderly

by Derek Gilna

            Make no mistake, America is now experiencing its own form of "lock down," with schools and restaurants, sports arenas, transportation hubs, churches and other gathering places shuttered.  DOJ has curtailed all visitors nation-wide for at least 30 days,  as  "social distancing" and serious cleaning and hand washing now is routine for all.

            This development has amplified the call for the release of all elderly prisoners to home confinement.   This is not just an Inmate.com rumor, but a serious topic of discussion.    We intend to insert language advocating that argument  in all petitions and court filings, and amending pleadings already on file. The DOJ "health care" system is clearly not equipped to handle any health-care crisis, and it's time to put the courts and the country on notice of this fact. Prepare your supporting documentation.

            Although there has not been any final announcement about closing federal courts, the Supreme Court no longer permits visitors, and some state and county court system have shut down entirely, except for emergency motions.  

            The federal government has today put hundreds of billions of dollars at the disposal of the credit markets and banks to keep the economy from collapsing, but has also decided that a long-sought $200 million new prison from Eastern Kentucky will NOT be built. All of this is happening in a state with two Republican Senators, including Majority leader McConnell. This sends yet another message to DOJ that the days of building new federal prisons is over, and the indictment of four prison workers in NC for covering up prisoner deaths shows that accountability in DOJ may be increasing.

            Huge pressure has been put on the federal pardon attorney by Congress to consider the "trial penalty" and judge-found sentence enhancements, when reviewing clemency applications, and once again, we will insert  this argument into all applications. 

            As Americans learn to cope with YOUR everyday routine of limited freedom of movement, however, our work continues. In an interesting 4th Circuit decision, US v Jackson, 19-6288, (4th Cir. 3-10-20), where the district court reduced the sentence to time-served, but refused  to "bank" the extra time he served before release to count against his term of supervised release, finding no abuse of discretion, but indicated that the sentencing court COULD exercise that discretion.

            In an important 6th CIrcuit case, the court in In re: John W. Franklin, 19-6093, has granted leave to file a second, successive 2255, to attack his 924(c) offense, based upon Davis, and the Justice Department agreed. The 6th Circuit said that although  normally "lower courts do not apply a new rule announced by the Supreme Court retroactively to cases on collateral review until the Court has announced (it," Lower courts may determine on their own...retroactively.. when 'multiple cases...necessarily dictate the retroactivity of the new rule,'" citing Tyler v Cain, 533 U.S. 656, 664, (2001).

            We will discuss more next week regarding attacking the guilty plea, when it is not "voluntarily and knowingly made." Have a good week, and let not your heart be troubled.

Federal Legal Center, Inc. ,Derek A. Gilna, JD,  Director

113 McHenry Rd.    #173, Buffalo Gove, IL   60089

(Also in Indiana) dgilna1948@yahoo.com

First Step Act Progress Slowed by DOJ Internal Turmoil Highlighted By Inspector General Criticism of BOP Food Service

DOJ Internal Turmoil Accelerates, and Prisoners Are Caught in the Middle

by Derek Gilna

            With no new SCOTUS decisions or Congressional votes on sentence reform bills scheduled for the week, we turn to the most recent tongue-lashing the DOJ  and AG Barr received at the hands of a federal judge. In the "Free World," accountability rules the day; few people or businesses do not in some fashion answer to someone. What's highly unusual is that the federal bureaucracy, including DOJ prosecutors and law enforcement are now feeling some new, unwelcome heat. Many have resigned.

            The DOJ Inspector General just issued a report that DOJ serves its "customers" "tainted food; we have learned that the BOP does not have a quality assurance plan to ensure that food products procured by the BOP meet the specifications outlined in BOP contracts, the standards set forth in BOP's national menu, industry standards, and legal requirements... (who knew? lol)."

            There is a palpable unease in the institutions as a result of the increased  media and Congressional scrutiny. Staff, who don't like the new FSA changes and recent pardons and clemencies,  which continues to reduce prisoner counts, theorize that this will perhaps cost them their jobs, (and those all important pensions), and might be motivated  to provoke you into conduct that will yield an incident report that will deny you sentence reduction.

            Career DOJ prosecutors are also resisting the President's recently-leaked three-track clemency process that will supplant their glacial and prosecutor-biased current system. The White-House working group on justice-reform, which did the leg work on previous clemencies that bypassed the dilatory DOJ process, is working on that program.

            In the circuits, recent decisions have created more options for those filing bother first 2255's alleging inadequate representation of counsel, a well as second-successive 2255's, the preferred method to return to court on procedural grounds. For context, we revisit Washington v. Ryan, 05-99009, (9th Cir.  2019), where the panel reversed the district court’s denial of habeas relief as to the penalty phase, and remanded, in a case in which Arizona state prisoner Theodore Washington, who was sentenced to death for first-degree murder, asserted that his trial counsel rendered ineffective assistance by not investigating and presenting mitigating evidence at sentencing.

            In US v Jawher, 19-1276, (8th Cir. 2-24-20), the court reversed on plain-error Rehaif grounds, where he had been convicted on one count of being an alien illegally in the country and possessing a firearm. This case has broad implications for those non-citizens convicted on similar grounds.

            In the Fourth Circuit, in US v Torres-Reyes, 18-4550, (4th Cir. 3-2-20), a non-citizen's conviction was reversed and remanded  where defense counsel failed to raised, and the court failed to properly consider,  his requested non-frivolous grounds for variance from his Guidelines range, "and gave an inadequate justification for the sentence...imposed."

            Have a good, productive week, let not your heart be troubled, and do not be afraid and do not be discouraged.

Federal Legal Center, Inc., Derek A. Gilna, JD, Director, 113 McHenry. #173,                              Buffalo Grove, IL 60089, (Also in Indiana) dgilna1948@yahoo.com.

ACCA Prisoner Progress Setback by SCOTUS Shular Ruling

Shular Decision Disappoints, but Does not Curtail Future Filings for ACCA Relief

by Derek Gilna

            The Supreme Court of the U.S. (SCOTUS) in Shular issued a disappointing opinion that advocates hoped would give prisoners one more argument to set aside ACCA convictions, but the high court didn't. Justice Ginsburg asked, "Does Section 924(e)(2)(A)(ii)'s 'serious drug offense' definition call for a comparison to a generic offense? ...it does not..(it) requires only that the state offense involve the conduct specified in the federal statute, (but) does not require that the state offense match certain generic offenses."

            However, in Holguin -Hernandez v. US, 589 US__, (2020) SCOTUS unanimously ruled in favor of Holguin, convicted on drug crimes and sentenced to 12 consecutive additional months while still on supervised release.  The court held that he had preserved his 3553 sentencing factor claims, and vacated the sentence.

            In US v. Stone, we previously noted that the Attorney General had overruled his local prosecutors and recommended a lesser term, which is exactly what the court granted, roughly 3 years rather than 7.  There is excellent reasoning in the AG's case filing that we have already used in court filings arguing for a below-guidelines sentence based upon 3553 elements. If you are eligible to file a 2255 habeas, and have been considering doing so, let us see if you might benefit from those arguments.

            HR 4018, which provides elderly offender sentence credit, and which unanimously passed the House, has passed out of Senate committee, and now awaits a Senate floor vote, yet to be scheduled. Prisoners are disappointed in the slow implementation of FSA time credit educational programs, which DOJ has yet to completely roll out.     Those of you who have been wrongfully denied participation in those sentence-reducing programs still have time to go through the admin remedy process to make sure that you get the credits when they become available.

            This brings us to the subject of DOJ staff behavior, the subject of a study, "The Z: Where Prison Guards' Favorite Tactic Is Messing With Your Head," highlighting the deliberate disorienting activities of unfair shakedowns, arbitrary enforcement of rules, and retaliatory transfers.    Be better than THEM; focus on the positive, and remember that they receive no bonus pay for being nice and giving you correct information. Attention is finally being paid to the extraordinarily poor treatment received by women prisoners, highlighted in a new report from the US Commission on Civil Rights, which shows that prison discipline policies often punish women more harshly than men. 

            Another study also shows that voters believe that reviewing and reducing lengthy sentences serves a variety of important policy goals, including: bringing U.S. sentencing more in line with international standards, reducing costs, correcting older excessive sentences out of step with current practices, and ensuring that people who pose little risk of committing crimes are not growing old behind bars, separated from their families.

            Let not your heart be troubled, and show your respect for each other not only with words, but with actions and with truth.

Federal Legal Center, Inc., Derek A. Gilna, JD, Director,

113 McHenry Rd.   #173, Buffalo Grove, IL (Also in Indiana)

dgilna1948@yahoo.com