Biden Sentence Relief Initiatives Delayed to Make Way for Infrastructure Bill

 

Sentence Relief Delayed While Infrastructure Bill Takes Center Stage; Pace of First Step Act Relief Accelerates; Some Observations on the Federal Prison System

 

by Derek Gilna

 

            First it was the Stimulus Bill that monopolized Congressional attention. Now it is the prospects of a multi-trillion dollar "Infrastructure" bill (which has not even been written or filed) that has captured the short attention spans of federal lawmakers. Thus, it appears for at least the moment that sentence relief legislation currently sits in Congressional committees, waiting for the leadership okay to advance these bills for a vote.   Obviously, when that takes place, and the bills pass,  Biden will sign them immediately. 

            For impatient readers and their families, understand that these sentence relief bills will make profound changes to the federal criminal justice system, reflecting the same changes already happening in the states. In my opinion, even a few of these changes will reduce non-immigration federal prisoner counts by at least a third.

            Sentence relief cannot be separated from the reality of American politics. Where are most of the federal prisons located? In Southern states, by a wide margin, established in the area when it was solidly Democratic and Democrats controlled Congress.   Why does West Virginia have so many prisons? Politics, pure and simple. However, given the reorientation of the Democratic party as one of coastal elites, select favored minorities,  and public employee unions, it needs to re-engage and attract minority votes. The fact that most federal prisons are located in solidly Republican states (other than California), means that there would be only a minimal  political price to pay for reducing prisoner counts.

            If you are looking for quick reform to somehow come from within in the DOJ-run and largely unaccountable federal prison system, you will be disappointed. Congressional action, and the stated preferences for reform of the new president will make "reform" irrelevant, by robbing the system of its "customers."  Only when the system returns to its pre-Drug War population levels  will you see improvement.

            One of the other ways that the system will be reformed is by the President taking advantage of his unlimited pardon and clemency power. The rumors of a broad-based clemency occurring sooner rather than later will not go away, and I again encourage those of you who wish to do so to start the clemency process. These things have a way of not moving for a long time (remember First Step?) and then moving very quickly, so best to get your place in line for at least a chance at relief. Biden designated April as "Second Chance Month," to once again reemphasize his commitment to sentence reform and doing more to assist the successful reentry of releasing prisoners.

            And what of the scandal of prison health care?   Many prisons are located in rural areas, far from the areas where qualified physicians and medical staff want to live and raise their families. Many current medical employees have sketchy pasts, and are employed at a prison because that is the only job they can get. Many of them actively conceal the system's incompetence by falsifying medical records, a federal offense. Prisoners fight to receive off the shelf batteries to run necessary medical devices. Transferred prisoners are denied their proper medication and C-PAP machines in new institutions.  For what purpose?  

            In this era of technological advancement, why shouldn't the prison system  consider the possibility of telemedicine, where prisoners can consult with true medical experts via video link in the all-important diagnostic stage? This would reduce staff to the role of dispensers of medication, and save taxpayers millions.  We were able to get compassionate release for a cancer patient who complained of her symptoms for many months while she was isolated by officials using the COVID excuse.    She is now at home with her family.

            In this era of universal surveillance and data-tracking, as well as numerous instances where defense attorneys and advocates have been surveilled in "secure" legal phone calls and other communications,  the National Association of Criminal Defense Lawyers (NACDL) and Berkley Law has sued the federal government for this breach of ethics. In February, the House of Representatives overwhelmingly approved the Effective Assistance of Counsel in the Digital Era Act by a vote of 414 to 11. In the meantime, understand that there is NO secure communication in any form in prison.

            This would also be an appropriate place to reemphasize the federal government's robust computer-diagnostic tools which effectively track ALL prior convictions and arrests, and have institutionalized the use of CI's to pinpoint attractive, slam-dunk prosecutions, instead of relying on old-fashioned police work.   (After January 6, the federal government begged for assistance from social media to identify potential suspects,  which it used to initiate its usual publicity-rich, low evidence, prosecutions which currently are the top priority of local federal prosecutors.) Why are most new arrests former prisoners or those on supervised release? They are the low hanging fruit in the algorithm-driven federal prosecution network. Once you are in the computer system you are never removed, even if you are done with supervised release.

            COVID-19 is the uninvited guest who refuses to leave. While the federal prison system emphasizes the number of "recovered" prisoners after its apparent policy of forced exposure, apparently to build "herd immunity," COVID continues to pop up over the entire federal prison  system. To name just two, Coleman Low is almost in complete shutdown, with serious cases, some requiring intubation in local hospitals  Aliceville is in a new lockdown to suppress the spread there.

            The symptoms of "Long COVID," ignored by DOJ,   will receive a $1.5 billion dollar grant for further study, according to the Wall Street Journal posted on April 2, 2021. One "recovered" COVID prisoner noted, "I am still experiencing...swelling and numbness in hands,...feet and legs., regurgitation of any food I consume, ..like acid reflux, a condition I...never...suffered from, overheating and profuse sweating and fatigue...constant congestion (in) my chest and (a runny) nose...(and) constant diarrhea." Treatment given: zero.  These facts mean that Compassionate Releases are very much an option, provided that they are well-documented, and well-pleaded.

            We also reemphasize the use of relief under 18 U.S.C. 3582(c)(1)(A)(i), as amended by section 603(b)(1) of the First Step Act of 2018, Pub L. 115-391, 132 Stat. 5194, 5239, which allows a sentence reduction for “extraordinary and compelling reasons.”   See US v. McDonel, No. 07-20189 (ED Mich. Jan. 13, 2021), and  

US v. Nafkha, No. 2:95-CR-00220-001-TC (D Utah Jan. 11, 2021).   These cases show that "stacking" sentences can be successfully attacked by well-drawn motions. Note that pre-2010 crack cases are entitled to resentencing, while Congress mulls reducing the ration to 1 to 1 from 10 to 1.  

            Be not afraid, and let not your heart be troubled.

Federal Legal Center, Derek A. Gilna, JD, MARJ (Master of Restorative Justice),Director

113 McHenry Rd.   #173,  Buffalo Grove, IL   60089, (and Indiana).

federallc_esp@yahoo.com for Spanish newsletter; dgilna1948@yahoo.com for questions in Spanish and English (dagilna1948@yahoo.com-backup address);

"Derek Gilna's Criminal Justice Musings and Reflections," on Google blogs.

           

Supreme Court Moves Up Argument Date for Terry Case; "Marshall Plan" Blog says BOP COVID Statistics are "Not Reliable"

 

TERRY Set for May Supreme Court Argument on Crack-Law Reform; DOJ COVID Statistics are Not Accurate; COVID-19, Still in Federal Prisons, May be Joined by New Variants of the Virus

 

by Derek Gilna

 

            The Supreme Court of the United States (SCOTUS) as a result of the Biden administration’s change in position in Terry v. United States, rescheduled argument in that case for May 4. At issue in the case is whether defendants who were sentenced for low-level crack-cocaine offenses before Congress passed the Fair Sentencing Act of 2010 are eligible for lower sentences under the First Step Act of 2018. The National Association of Criminal Defense Lawyers told the justices that their review was essential “to ensure that Congress’s goal of alleviating the racial disparities in sentencing caused by the 1986 law’s harsh sentencing regime is realized,” and the expected favorable decision will open the gates for thousands of crack resentencings nationwide.

            Those who follow this newsletter know that we spend a lot of time accumulating medical research  and institutional data documenting DOJ's feeble  response to COVID-19. One of the most respected source of news on this subject is the non-partisan Marshall Project, whose COVID-related data has found their way into numerous court decisions.   Heeding the drumbeat of individuals like myself who have for months questioned the accuracy of DOJ-reported data on illness and death from COVID, that organization announced that it will no longer report DOJ-reported data, stating that it is clearly understated, inaccurate, and meant to be misleading. "Coronavirus cases inside prisons are still rising slowly...an accurate national count of positive cases is no longer possible because the Federal Bureau of Prisons, which has had more prisoners infected than any other corrections system, has removed from its count prisoners released after contracting the virus." Marshall Project, 3-26-21.

            One of the hardest hit federal prisons is located in Springfield, Missouri, at the BOP's Medical Center for Federal Prisoners, which houses some of the nation's most medically vulnerable inmates, with 18 deaths. FMC Burner, FMC Carswell, FMC Rochester, and FMC Devens all continue to have numerous cases not only of COVID, but all the lingering systems known as "Long Covid." Coleman and Schuylkill, both non medical facilities, continue to have numerous COVID cases.

            Nearly 50,000 federal inmates — about one-third the total federal inmate population — have tested positive, as well as nearly 6,500 staff, DOJ data show.   Tucson prison, with ten deaths, recorded the third-highest number of positive COVID-19 cases compared to other federal prisons — 895 — surpassed only by the federal prisons at Fort Dix, New Jersey, with 2,014 cases, and Seagoville, Texas, with 1,240 cases, DOJ data show.

            The past week Senators  Durbin and Grassley re-introduced "Smarter Sentencing Act" to reduce federal drug mandatory minimums, and bring judicial discretion and flexibility to non-violent drug charge sentencing. The bill is cosponsored by 11 of their colleagues. I expect this bill to move quickly to  passage and signature.

            Unfortunately, the DOJ's inability to contain COVID-19 is likely to aggravate the effects of the so-called "New York virus mutation." The coronavirus variant on the rise in New York City and elsewhere contains the same E484K mutation seen in variants in Brazil and South Africa believed to make COVID-19 vaccines and antibody therapies less effective, as well as a mutation called S477N." Report by New York State Department of Health researchers posted on Monday on medRxiv.

             All versions of the variant circulating in New York harbor a mutation called D235G that might reduce the efficacy of neutralizing antibodies. The variant "has increased in the circulating virus population in New York state by almost 26-fold in a little over a month," the researchers said. "The combination of E484K or S477N with a D253G mutation that might confer immune escape, and the increased number of COVID-19 cases associated with these variants, warrants further monitoring," they said. (https://bit.ly/2ZYX0JM).

            Michael D. Cohen, MD, states that  "February saw numerous reports about mutations and new variants of the pandemic coronavirus. A variant called B.1.1.7 was first identified in England (UK) last fall. B.1.1.7 spreads among people more easily (is more infectious) and may also cause serious illness more often. As of February 16, 2021, this variant has been identified in 42 states." Prison Legal News, March, 2021.

            COVID-19 has also shone a bright light on poor health care in Prisons and jails

 According to "The Lancet," the leading medical journal in the UK,  "Prison health systems remain a weak link in public health preparedness, racial and social justice, and human rights ... Humane and evidence-based prison health systems with community links will improve public health within and outside prison walls, both for COVID-19 and other health issues. Such an approach is key to the pursuit of a just and equitable society. As Nelson Mandela said, ‘A nation should not be judged by how it treats its highest citizens, but its lowest ones.’” The Lancet, Vol. 396No. 10266p1870, Published: December 12, 2020.

            "Long COVID" continues to gather attention and medical research reporting. As reported in the Wall Street Journal on March 16, 2021, page A9, "In February, the National Institutes of Health announced a major initiative to study long Covid, backed y $1.15 billion... ' Large numbers of patients who have been infected...continue to experience a constellation of symptoms long past the time that they're recovered from the initial stages...said Director Francis S, Collins. " Mayo Clinic has developed a therapy for those individuals, but of course, the chance of this being offered to prisoners is minimal.

            Be not afraid, and let not your heart be troubled.

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

113 McHenry Rd.   #173, Buffalo Grove, IL   60089 (and Indiana),

dgilna1948@yahoo.com; blogging at "Derek Gilna's Criminal Justice Blog."

 

 

Crack Resentencings in the Offing: Terry v US Supreme Court Case Will Require Sentence Reductions; "Long Covid" will Support Compassionate Releases

 

Terry v. US News: DOJ Will No Longer Oppose FSA Crack Resentencings; Amicus Appointed to Argue Against It; Impact of COVID-19 "Long Haul" Cases Will Support Additional Compassionate Releases

 

by Derek Gilna

 

            In a move that will have a major downward impact on the federal prison population, Biden's Department of Justice (DOJ) will no longer oppose the resentencing of crack defendants in the case of Terry v US, 20-5904, currently before the Supreme Court.   The high court took the unusual step of appointing counsel to defend the lower court decision opposing First Step resentencings. Under the circumstances, regardless of the decision of the SC going forward, if DOJ does not oppose your resentencing, it will accomplish the same goal.   I would be pleased to advise you if you are eligible for this relief.

            Those disappointed with the relatively few clemencies granted by the former president, many of which were pushed by groups allied with Jared Kushner, or former Aliceville prisoner Alice Johnson, the situation now could not be more different. Every advocacy organization has been invited to submit applications, and I would encourage you to do so, especially if you have served a substantial portion of your sentence, are non-violent, and have been serious about programming.

            Those concerned that the opportunity for a Compassionate Releases has been narrowed by the small number of vaccines administered to prisoners, your concerns are unfounded, especially given prison guards' reluctance to vaccinate. The prison pandemic has exposed the fraud of DOJ medical care to not only advocacy organizations, Congress,  but also the general public, and the DOJ prison bureaucracy is bracing for some major new oversight from Congress. Congressman Fred Keller, a Republican from Pennsylvania, announced the formation of the federal prison reform caucus,: "We understand that good, transparent government is not a partisan issue."  This is important because all members are young, aggressive, and less beholden to the powerful prison bureaucracy.

            Interestingly, the Correctional Officer Unions support the move, since they too were hung out to dry by Central Office during the pandemic, and their memberships suffered many COVID-19 deaths and infections.

            A new study of "Federal Facilities in the United States,"  finds that 36% of federal prisoners have been infected, a far higher percentage than the general population. It rates the DOJ COVID website as a D-, primarily  for significantly undercounting active cases. "CLA Law Covid-19 Behind Bars Project," UCLA Law School, 3-17-21.

            More and more studies and publications support the fact that even those who have recovered from COVID-19, also known as "Long Covid" patients, will suffer side effects for years, and require close medical attention and monitoring, a level of treatment non-existent in the federal prisons system. One physician noted that "individuals who had 'recovered' from COVID-19 had significantly damaged lungs, worse than those of life-long heavy smokers." Dr. Brittany Bankhead-Kendall, MD. "All the survivors and the people who have tested positive...is...going to  (have a ) problem," she said. CBS news, Dallas Fort Worth,  1-13-21.

            Another researcher said, "What we have found is that in some patients with COVID-19, the virus triggers an autoimmune reaction...the virus tricks the body into attacking itself," said Dr. Swati Deshmukh, asst. prof. at NW University School of Medicine, in "Skeletal Radiology, NW University, 2-17-21. "Imaging (CT, MRI, ultrasound) can help explain why someone might have prolonged musculoskeletal systems after COVID, directing them to seek the right physician for treatment, such as rheumatologist or dermatologist."

            On a different note, it is now clear that the level of DOJ access to cell-phone data, including location tracking,  and other computer-related tools, including programs that sort potential law enforcement targets based upon more offenses and known associates is much higher than realized. If you are engaging in illegality, your likelihood of arrest is extremely high. If you are about to be released, bear this in mind.

In the circuits, in US v. Mayweather, et al.   17-13547, (11th Cir. 3-17-21), defendants were corrections officers caught in an FBI sting operation for accepting bribes to smuggle contraband into prison. The Eleventh Circuit concluded that Williams and others were entitled to an entrapment defense jury instruction, the omission of which was reversible error. The court concluded that it was reversible error not to provide the jury with any definition of "official act" for purposes of the Hobbs Act extortion counts. Accordingly, the court reversed the Hobbs Act extortion convictions as to all four defendants and remanded for a new trial as to those counts.            In Bridges v. US, 20-1623, (7th Cir., 3-17-21),  Bridges sought post conviction relief, alleging he was denied effective assistance of counsel because his lawyer failed to argue that Hobbs Act robbery did not qualify as a “crime of violence.” At the time, there was no Seventh Circuit precedent on that issue. The district court denied relief. The Seventh Circuit reversed for an evidentiary hearing on defense counsel’s performance, joining other circuits that have concluded that Hobbs Act robbery is not a Guidelines “crime of violence.” Effective counsel would have considered this important question; minimal research would have uncovered a Tenth Circuit decision holding that Hobbs Act robbery was no longer a crime of violence under a 2016 amendment to the Guideline definition of a crime of violence.            The Lompoc prisoner class-action continues to move forward, although slowly, with the federal court in California has issued an injunction against DOJ to force it to comply with CDC guidelines. It includes  prisoners "with underlying health conditions, including chronic obstructive pulmonary disease; serious heart conditions such as heart failure, coronary artery disease, or cardiomyopathies; Type 2 diabetes; chronic kidney disease; sickle cell disease; Immunocompromised state from a solid organ transplant; obesity (body mass index of 30 or higher); asthma; cerebrovascular diseases; cystic fibrosis; hypertension or high blood pressure; Immunocompromised state from blood or bone marrow transplant; immune deficiencies, HIV, or those who use corticosteroids, or use other immune weakening medicines; neurologic conditions such as dementia; liver diseases; pulmonary fibrosis; thalassemia; Type 1 diabetes; and smokers." A good checklist.      Be not afraid, and let not your heart be troubled. Federal Legal Center, Derek A. Gilna, JD, MARJ, Director 113 McHenry Rd.   #173, Buffalo Grove, IL   60089 (and Indiana) dgilna1948@yahoo.com; blogging at "Derek Gilna's Criminal Justice Blog," Google blogspots.

Stimulus of $1400 Will Also Include Prisoners; Biden's DOJ Revisits "Covered Sentence" Crack Laws

 

Positive Changes at DOJ under Garland and In Congress on the Horizon; DOJ Changes Course on "Covered Sentence" Crack Cases; Prisoners WILL get the $1400 Stimulus

 

by Derek Gilna

 

            According to the Vera Institute in 2021, "The number of people incarcerated in state and federal prisons and local jails in the United States dropped from around 2.1 million in 2019 to 1.8 million by mid-2020--a 14 percent decrease." Of course, unless you are one of the 14 percent this is of little interest to you, but that silence that you hear is the public NOT objecting to all of the early releases and home confinements. In fact, the atmosphere for further reform has never been better. Unlike under most of Obama's and Trump's time in office, the Democrats hold most of the levers of power, and reform has broad bipartisan appeal.

            In fact, plans are in the works to increase funding for the First Step Act and the kinds of educational and job training programs, including "earned time credits," which lets people shorten the length of their sentences by completing various programs.

The other proposed improvements is to reform an incredibly harsh supervised release system, with invasive and demeaning monitoring and jail time for technical offenses. Also, there is strong support for the Safer Detention Act., the Smarter Sentencing Act, and other initiatives that expired in the last Congress.

            Newly introduced Senate Bill 739 is a bill "to specify the state of mind required for conviction for criminal offenses that lack an expressly identified state of mind." If adopted, it would provide a potent defense to a lot of often subjective and amorphous white-collar offenses.

            DOJ has also signaled that it now supports the crack retroactivity provision of the First Step Act in SCOTUS case Terry v United States, 20-5904, which concerns which crack offenders have a so-called "covered offense" under Section 404 of the First Step Act that would allow for their retroactive resentencing. This clears the way for crack-related prisoners to file for resentencing.

            Despite an attempt to prevent them from doing so, prisoners will be eligible to receive the new $1400 stimulus. If you filed for the stimulus before (even if not yet received) you should receive the new payment at the same address. I do not recommend a REFILING just because the first two payments were delayed.

            One of the unsettling factors that has contributed to the still high COVID-19 infection rate among federal prisoners is the well documented reluctance of prison staffs to wear masks, sanitize, and follow the DOJ directives. As inoculations have begun in prisons,  "corrections employees are refusing vaccines at alarming rates, causing some public health experts to worry about the prospect of controlling the pandemic both inside and outside. Infection rates in prisons are more than three times as high as in the general public. Prison staff helped accelerate outbreaks by refusing to wear masks, downplaying people’s symptoms, and haphazardly enforcing social distancing and hygiene protocols in confined, poorly ventilated spaces ripe for viral spread." Marshall Project, 3-15-21.   (Sound familiar?)

            As the new and more deadly mutant variants of COVID-19 cross the country, prisons will be in a poor position to resist it. Wall Street Journal,  3-12-21. Also according to the WSJ,  the failure of DOJ to vaccinate prisoners with vaccines other than those doses refused by guards puts the federal prisoner in a vulnerable position. "Where you have a partially vaccinated population, or a partially immune population with lots of virus circulating, that's kind of your danger point." said University of Bern molecular epidemiologist Emma Hodcroft.

            Also highly disturbing is the August 21, 2020 report by the CDC, that contains statistics submitted by three unnamed federal prisons, along with a dozen state institutions, that show federal prisons had among the lowest number and rate of tests administered, and the highest number of reported cases despite that lack of testing. This flies in the face of CDC guidance which states the following: "testing staff members at regular intervals, regardless of symptoms, could become an important port of...prevention...; (COVID-19) was three times higher in  dormitory-based housing (42.6%) than in cell-based unit (14.6%); (and) mass testing...occurred 2-41 days after identification of the facilities first cases." Hagan, LM, Williams SP, Spaulding AC, et al. Mass Testing for SARS_CoV-2 in 16 prisons and jails, April-May 2020, MMWR Morb Mortal Wkly Rep 2020:19:1139, quoted in www.cdc.gov.

            There are many who suggest that the mass outbreaks in places like Waseca, Butner, and Carswell were a result of "deliberate indifference," and perhaps something even more. In it's 8-1-20 article, "What COVID-19 Prison Outbreaks Could Teach Us About Herd Immunity," the organization noted the examples of the  Holmsberg and Stateville prisons (non DOJ facilities) in the fifties and sixties, where experiments regarding diseases and bacteria were performed on prisoners without their consent. All reputable health experts agree that there is no such thing as "herd immunity" from everyone catching the virus (and hopefully recovering), UNLESS there is vaccination rate of at least 80% of the affected class of individuals.

            I encourage people to consider not only compassionate release cases (if you feel that you have a serious medical condition), but also 404 motions, commutation/pardons, or all three. The COVID-19 debacle in federal prisons has alerted most judges to the horrific conditions on the inside, (with numerous OSHA violations)  which in most places, has not improved, with high COVID counts at, among others, FMC Rochester, and Schuylkill, which continues to require assistance from other federal agencies. 

            Also, do not overlook a 2255 habeas.   In US v. Pressley, 19-6222, (4th Cir. 3-11-21), the defendant "alleges that he repeatedly asked his trial counsel to file a motion to suppress certain incriminating statements he made to law enforcement officers before his arrest." It was remanded for an evidentiary hearing, which if successful, would result in a  resentencing.

            Be not afraid, and let not your heart be troubled.

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

113 McHenry #173, Buffalo Grove, Il  60089, (and Indiana)

dgilna1948@yahoo.com, blogging at "Derek Gilna's Criminal Justice blog."  

           

 

COVID-19 Continues to Be Problematic for the BOP, and Number of Guard Refusals of Vaccine Will Insure It Remains One

 

COVID-19 Cases in Federal Prisons Rise Slightly, DOJ Fumbles Vaccine Rollout

 

by Derek Gilna

 

            Despite its over-hyped  (and useless) January, 2020 "Action Plan," for dealing with the corona virus, the federal prison system, continuing its long history of bureaucratic fumbling, is still a hotbed of COVID-19 cases.   (Rochester: 433 inmates and 59 staff total Covid positive; Schuylkill, 50+, with CDC help imminent because of continued problems; Bryan, 50+; Aliceville, 50+; Coleman women, over 50, with 2 deaths, and an outbreak of legionnaires' disease also; Tallhassee women, 50+;  Carswell, 25+, with severe shortage of medical staff to treat emergencies.) There are also widespread concerns about vulnerability to repeat infection and the prisons' inability to deal with that problem.

            District courts, although many have slowed to a crawl as a result of lockdowns and a deluge of prisoner filings, continue to grant Compassionate Releases. People who have recovered have also received relief. Many judges clearly do not trust the prison system to address the continuing problem.

            Unfortunately for vulnerable prisoners, the vaccine rollout has also had serious issues. DOJ, and its dysfunctional stepchild, the federal prison system, have a problem with transparency. DOJ websites claim that almost 50,000 doses have already been administered, but that number, even if accurate, is misleading. he doses given to prisoners are generally those rejected by Prison staff numbers, who number almost 40,000. This means that at most 10,000 single doses have found their way to prisoners. Many staff have refused the vaccines, meaning that they are still potential spreaders of the virus. There has also been little concern as to whether it is appropriate to give to people who have already been ill, or are allergic to vaccines.  If you are neither, TAKE IT, as I will next week.

            It might be helpful to take note of these suggestions for preserving your medical circumstances for future litigation: 1. Retain all medical records, receipts, and labels off medication and prescriptions, and send copies to outside contacts.2. Keep a diary of all interactions with prison medical staff and outside medical providers, and send copies to outside contacts.3. Send emails to all prison medical personnel documenting your current medical condition, treatment (or lack of it), how you feel, and what treatment that you requested, and what you didn't get.4.   Send copies of all of this to your outside people.

            I am also beginning to see examples of deliberate misstatement (or omission of key facts) in prison medical records, especially where prison medical personnel feel that they might be targeted by a lawsuit for poor treatment.   Aggressively seek your medical records, and scan them for inaccuracies, and memorialize those inaccuracies in emails to staff. 

            On the legislative front,  Senate Majority Whip Dick Durbin (D-IL), Chair of the Senate Judiciary Committee, and Senator Chuck Grassley (R-IA), Ranking Member of the Senate Judiciary Committee, the lead sponsors of the landmark First Step Act, introduced the bipartisan, bicameral Prohibiting Punishment of Acquitted Conduct Act of 2021.  This legislation would end the unjust practice of judges increasing sentences based on conduct for which a defendant has been acquitted by a jury

             “Under our Constitution, defendants can only be convicted of a crime if a jury of their peers finds they are guilty beyond a reasonable doubt.  However, federal law inexplicably allows judges to override a jury verdict of ‘not guilty’ by sentencing defendants for acquitted conduct.  This practice is inconsistent with the Constitution’s guarantees of due process and the right to a jury trial,” Durbin said.  “Our bipartisan, bicameral bill would make it clear that this unjust practice is prohibited under federal law.”

            Did a Sixth Circuit panel largely decimate the federal sentencing fraud guidelines (and perhaps many others)? See the Sixth Circuit's panel decision on Wednesday in US v. Riccardi, No. 19-4232 (6th Cir. Mar. 3, 2021). The Riccardi decision is the latest in a series of relatively new circuit rulings in which courts are declaring it improper and impermissible for the commentary to the federal sentencing guidelines to be applied in ways that expand the meaning of the actual guidelines. It focuses on the commentary to the fraud guidelines, USSG § 2B1.1, which has an extensive accounting of how courts should account for the key factor of "loss" in the main guideline. This will be a big deal for white collar defendants if it is made retroactive. 

            Also, it should be noted that the fraud guideline is not the only one important part of the federal sentencing guideline with an intricate set of commentary instructions that might be challenged as full of "improper expansions."  Perhaps this theory might find its way to the US Supreme Court before too long.

            You are never alone. Be not afraid, and let not your heart be troubled.

 

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

113 McHenry #173, Buffalo Grove, IL   60089 (And Indiana.)

dgilna1948@yahoo.com. Derek Gilna's Criminal Justice Blog, on Google blogspot.

 

 

Clemency Reform An Easy Fix for Biden, and Not Require Any Congressional Approval

 

Clemency Reform Discussion Accelerates:  Texas, Louisiana Prisoners Suffer in Cold Snap

 

by Derek Gilna

 

            The Biden Presidency is slightly more than a month old, and his attorney general designate, Merrick Garland, has yet to be confirmed, but there is mounting pressure on Biden to use his clemency power boldly to help reverse mass incarceration. The ACLU has encouraged him to release 25,000 federal prisoners with the stroke a pen, although of course, it is not all that simple.   Less than 15,000 applications for clemency are currently on the books. To accomplish that, Biden would have to have a team in place in all federal law enforcement agencies, and it would require at least the  minimal cooperation of the federal prisoner prison system to carry it out.

            This would probably require a change of DOJ prison "leadership,." based upon its botched response to COVID-19.    Although COVID counts in the country have plunged,  certain prisons, like Rochester (400+), Carswell (200+), Coleman, Oakdale, Beaumont, Schuylkill, continue to have unacceptably high totals, and that is just part of the picture. DOJ has done little to nothing for most "recovered" virus patients, despite the long-term effects of the disease.

            The DOJ website says that 50,000 doses of the vaccines have been delivered, but although it does not specify if those were given to the thousands of employees or to prisoners; we know the truth.   Most of what has been  given prisoners are doses rejected by the guards, who are not required to take them.   Of course, these same guards are then more likely to reintroduce the virus back into the prison, along with the new transferees and self-surrenders.

            DOJ also fails to screen prisoners to see which patients would have adverse reactions to any vaccine, while often forcing prisoners to sign release forms before they get vaccinated, without first permitting them to read them. This goes on daily, especially in the hardest-hit institutions, who are not ready for the next wave of reinfections or new viruses currently making the rounds in general public.

            It is hard not to be saddened and sickened by the news coming from Texas and Louisiana prisons, both state and federal. When millions of individuals lose both power and water, it is a disaster, but they at least have some options to help themselves.   Prisoners left without heat, water, medical care, cleaning supplies, and sometimes even adequate food had no such options, and it was so bad even the mainstream media caught on. One paper summed it up this way: "Thirsty, Cold and Scooping Scooping Feces With Their Hands." Describing the situation at Danbury, a feature in the New York Times, which often previews Democratic Party policy initiatives, was titled "Vulnerable Inmates Left in Prison as Covid Rages, " highlighting DOJ's slow-walking of CARES releases.

            On a brighter note, there are multiple pieces of legislation pending that would markedly improve prisoners' resentencing/release options, including the MORE Act, which de-schedules marijuana, and the Safer Detention Act, for over 60 prisoners, which would increase home confinement (currently known as the Elderly Home Detention Pilot Program).  Also, the most recent COVID relief bill has passed only the House, but not the Senate, and still has not been signed into law.

 

            In the Fourth Circuit, the case of In re: Dearnta Lavon Thomas, 19-292, (2-23-20),  the appeals court granted authorization to file a successive 2255 motion based upon Davis, the court holding Davis now applies retroactively on collateral review, and and agreed that the filing stated a plausible crime of violence claim "that warrants further exploration by the district court."  In the 5th Circuit, in US v Nora, 18-31078, (2-24-21), the court vacated a medical health care fraud conspiracy conviction, finding insufficient evidence, and turned on the definition of what was a willful violation of the anti-kickback laws, stating that "evidence of (defendant's) knowledge was lacking."

            Be not afraid, and let not your heart be troubled.

 

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

113 McHenry Rd., #173, Buffalo Grove, Il   60089 (and Indiana)

federallc_esp@yahoo.com for newsletter

dgilna1948@yahoo.com for  question in Spanish;  "Derek Gilna's Criminal Justice Blog"

 

 

BOP COVID Numbers Hold Steady: Mandatory Minimums On Biden's Radar?

 COVID-19 Infections Continue To Climb in Federal Prisons While Declining Elsewhere

 

by Derek Gilna

 

            CDC studies show that individuals in prisons are  4.7 times to contract and die from COVID-19 than the general population.  There are many reasons for this and not just DOJ incompetence in controlling the virus. First, DOJ health care ranges from poor to non-existent, Second, as a result, studies also show that federal prisoners are not a healthy group, with a higher incidence of diabetes, obesity, heart disease, dementia and other mental illness, and other serious chronic illnesses that exponentially increase their chance of death from COVID-19, or even just a common influenza. Those with two or three such medical "co-morbidities," potentially death-causing conditions, are at increased risk.

            And, if you do contract the virus and survive, studies have shown that it will seriously reduce your overall health and increase your chance of early death. New radiological evidence and scientific studies show that "COVID-19 can cause the body to attack itself,"  https://news.northwestern.edu /stories/2021/02/radiological-images-covid; https://abc11.com/health/medical-images-show-covid-attacking-body-new-study-finds/10350794/.

            The other wild card for prisoners is the newer strains of the virus, which may very well be incubating in a prison near you.  Scientists have written that confined areas with high rates of infection, low rates of vaccination, and which  have people traveling to and from are perfect spots for the new virus to take hold. "Vaccination Delays Promotes Strains,"   Wall Street Journal, 2-22-21.

            There is some evidence that this has already happened in Minnesota. On January 9, 2021, the Minnesota Department of Health (MDH) announced the identification of the SARS-CoV-2 variant of concern (VOC) B.1.1.7, also referred to as 20I/501Y.V1 and VOC 202012/01, in specimens from five persons; on January 25, MDH announced the identification of this variant in specimens from three additional persons. The B.1.1.7 variant, which is reported to be more transmissible than certain other SARS-CoV-2 lineages.  https://www.health.state.mn.us/news/pressrel/2021/covid010921.html.

            Studies have shown that those who have "recovered," or show no active symptoms, are often afflicted with "long COVID,"  a condition which is only starting to get more attention. https://www.wsj.com/articles/the-challenges-of-getting-long-covid-patients-back-to-work-11613350801. Those with this condition are also prone to reinfections, as happened in Lompoc, California, Elkton, Oakdale, Waseca, and elsewhere. https://www.webmd.com/lung/news/20201012/first-confirmed-us-case-of-covid-reinfections. These changed circumstances can "open the door" to new CR filings if you were previously rejected.

            Serious outbreaks continue at Ft. Dix, which still measure in the hundreds, Carswell, Rochester, with over 400 cases (out of 600 prisoners), and Coleman, where 85% have or have had the virus, and which continues under a lockdown. The recent total breakdown at Texas prisons has also contributed to the misery at Carswell, with no heat, water, working toilets, and limited personnel. DOJ continues its quiet campaign of seemingly random prisoner vaccinations, often using doses rejected by guards, but continue to violate most CDC protocols for employee testing, social distancing, transfer of personnel, and proper quarantining procedures, meaning that the virus will be in federal prisons for many months to come. "COVID-19 Management Assessment and Response Tool for Correction and Detention Facilities," www.cdc.gov.

            The ACLU and other prison reform advocates are ramping up the already considerable pressure on Attorney General-Designate Garland, who is facing Congressional confirmation hearings today. "Reducing the federal prison population will require substantial changes to DOJ charging and sentencing policies," the ACLU said in a letter to Garland. " Perhaps the single most impactful action you can take, if confirmed as Attorney General, to begin to reduce mass incarceration is to stop charging mandatory minimums. (You) will have the authority to expand the 2013 Holder memo, which gave prosecutors discretion to avoid charging mandatory minimums in certain drug cases... You can also direct prosecutors to stop seeking a trial penalty," and stop opposing all compassionate releases. More on this next week.

            In  US v. Hogsett, 982 F,3d 463m (7rh Cir. 2020) the court joined the First and Fourth Circuits,  which have already ruled that FSA modified 841(b)(1)(C) holding that any crack offense qualifies for sentence relief. In US v. Burnley, 19-4176m (4th Cir. 2-19-21), the court vacated and remanded a manager and supervision leadership enhancement while affirming a drug conspiracy conviction.

            One of the recurring issues is whether or not you have been wrongfully sentenced based upon ineffective assistance from your defense attorney. Here are five ways of analyzing your case to see if this was the case: (1 Your lawyer made decision without consulting you; (2 Your lawyer filed notices late; (3 Your lawyer behaved unprofessionally; (4. Your lawyer never responded to you; (5 Your lawyer got terminology or procedure wrong, perhaps showing cognitive decline (dementia); (6 Your lawyer never explained why you should or should not plead guilty/go to trial. There are of course other instances, which we would be pleased to review.   There are time limits for such filings, generally one year after the completion of your direct appeal.

            Be not afraid, and let not your heart be troubled.

 

Federal Legal Center, Derek A Gilna, JD, MARJ, Director,

113 McHenry Rd.   #173, Buffalo Grove, Illinois 60089 (and Indiana)

dgilna1948@yahoo.com, blog "Derek Gilna's Criminal Justice" Blog, Google blogspot