BOP DELTA Variant Risks to Prisoners Increases as Prisons Begin to see More Cases.

 

Biden's Lack of Urgency on Justice Reform Puts New Emphasis on "First Step" Petitions to Get Relief; Will Senate Take the Lead on Reform? CDC Issues DELTA Variant Warnings with 67, 000 new cases Last Week; Lack of Guard Vaccinations Put Prisoners at Risk; Important Case Filings in Fourth Circuit

 

by Derek Gilna

 

            It has been a bad week for the Biden administration, as sentence reform advocates

hammer the White House for lack of urgency on promised justice reforms. The  explanation for the delay in granting clemencies and pushing the bills pending in Congress is simple: spiking big-city crime, up 30% in Chicago, New York, San Francisco, Washington, D.C., and other big cities, and dipping poll numbers, making the administration fearful of being labeled "soft on crime." Reformers in the White House ask for patience, but for the moment, the path to relief lies in the courts.

            However, today Senators Grassley and Durbin announced that THEY will take the lead at pushing those many criminal reform measures through Congress if the White House does not take prompt action.

            There is no question that there is a direct correlation between a court filing for compassionate release (where valid grounds for relief exists, even if unsuccessful) and a CARES release.  I do not believe in coincidences, but I suspect that the federal prison system knows that its computerized medical records purposely understates the poor health of many prisoners, and that it actively scans compassionate release court filings for information on individuals that are truly at risk.

            Meanwhile, the DELTA variant continues to make its mark, especially among the unvaccinated, and is once again beginning its march through jails and prisons. Tallhassee, Aliceville, Carswell, Ashland, Milan, and several others have multiple cases, and prison officials are again reluctant to test. Lack of guard vaccinations continues to drive most of the increases.

            The prison in Oakdale, Louisiana, grabbed national headlines in March 2020 after a COVID-19 outbreak killed at least eight inmates and sickened more than 100 people. Sixteen months later, about 70% of its inmates have been vaccinated against the coronavirus - a rate more than double the 34% of prison staffers there who have taken the shot, according to Oakdale's union leader Ronald Morris, president of the American Federation of Government Employees Local 1007, a clear recipe for future disaster.

            A paper by Gregory Hooks of the Sociology Department of McMaster University, argues that lack of guard vaccinations and high COVID counts in prisons have directly contributed to COVID spread in communities surrounding jails and prisons.

"Mass Incarceration, COVID-19, and Community Spread," 11-1-20.

            As noted in the Wall Street Journal, "the Delta variant is perhaps two to three times more transmissible than the original virus that first emerged from China in 2019.   In the absence of any mitigating public-health measure, every 10 people infected with the original virus would go on to infect 25 people, on average.   With Delta, 10 infections would likely result in between 60 to 70 new infections."   www.wsj.com. 7-24-21.

            It appears that, "10% to 30% of all Covid-19 patients suffer from symptoms weeks and months after first getting the illness, including many young, previously healthy people, whose initial Covid-19 cases were mild.   Symptoms can include brain fog, fatigue, shortness of breath, racing heart beat, and an inability to tolerate physical or mental exertion....Most  people...have dormant, normal harmless viruses...that they contracted earlier,...Such viruses can be reactivated at times by stress, including infections." "Are Latent Viruses behind Long Covid-19 Symptoms?" www.wsj.com, 7-14-21.

            Under these circumstances, those both inside prison, those on the CARES waiting list, and those already on home confinement, would be well-advised to file  sentence reduction motions under the (so-called compassionate release) statutory provisions of 18 U.S.C. § 3582(c)(1)(A).  This would resolve the potential legal limbo in which CARES releasees  now find themselves, which could be perfectly described as constituting "extraordinary and compelling reasons" for a sentence reduction, especially if prosecutors cannot show how the 3553(a) factors would be better served by a return to prison. 

            Yet another study, a report by the governmental "Pandemic Response Accountability Committee: Key Insights: Covid-19 in Correction and Detention Facilities,"   May 12, 2021, is also critical of the government response to the pandemic. It noted that "The Centers for Disease Control and Prevention guidance recommends that facilities have three separate physical areas to (1) isolate individuals with confirmed COVID-19, (2) isolate individuals with suspected COVID-19, and (3) quarantine close contacts of those with confirmed or suspected COVID-19." https://www.pandemicoversight.gov.

            The Delta coronavirus variant surging across the United States appears to cause more severe illness and spread as easily as chickenpox, according to an internal document from the US Centers for Disease Control and Prevention. CDC Director Dr. Rochelle Walensky said, "I think that people need to understand that we're not crying wolf here. This is serious," she told CNN. "It's one of the most transmissible viruses we know about. Measles, chickenpox, this -- they're all up there." CDC  says the Delta variant is about as transmissible as chickenpox, The US averaged more than 66,900 new daily cases over the last week -- an average that's generally risen since the country hit a 2021 low of 11,299 daily cases on June 22, according to Johns Hopkins University data. "The number of cases we have now is higher than any number we had on any given day last summer," Walensky told CNN.

            In the circuits, you may recall the split Sixth Circuit panel opinion in US v. Jarvis, No. 20-3912 (6th Cir. June 3, 2021), which stated that "non-retroactive changes in the law [can] not serve as the 'extraordinary and compelling reasons' required for a sentence reduction."  However, there is nothing in the text of § 3582(c)(1)(a) that supports the contention that non-retroactive changes in the law cannot ever constitute "extraordinary and compelling reasons" to allow a sentence reduction, either alone or in combination with other factors. 

            The good news that the inimitable Shon Hopwood has filed a powerful amici brief in the rehearing en banc on Jarvis, which effectively destroys the slim majority's argument: " this Court should refrain from holding that factors are legally impermissible unless consideration of those factors conflict with the statutory text.  To do otherwise is to substitute this Court’s judgment for Congress’s.  Because a district court’s consideration of non-retroactive sentencing-law reforms as extraordinary circumstances does not contravene any contrary statutory command, it is legally permissible (and is in fact consistent with the legislative history and plain text of the First Step Act)...."

            Hopwood was one of the first advocates to note that the First Step Act had empowered judges to review former decision previously only reachable by difficult  second-successive 2255 petitions, and paved the way for thousands of prisoner resentencings and releases.   Let's hope that this argument has a similar effect.

            Be not afraid. Let not your heart be troubled.

 

Federal Legal Center, Derek A. Gilna JD (De Paul Law, 1975), and MARJ (Vermont Law, 2020), Director,   113 McHenry Rd. #173, Buffalo Grove, IL, 60089, and Indiana, dgilna1948@yahoo.com, for English-language newsletters and questions in English and Spanish, federallc_esp@yahoo.com, Spanish language newsletter only.   Blogging at "Derek Gilna's Federal Criminal Justice Musings and Reflections." 

 

 

CARES Recipients At Risk of Return to Federal Prison May Find that DELTA Virus Spread May Bring Sentence Relief

 

Delta-Variant of COVID-19 Has Arrived in the Federal Prison System; CARES Releases Should Continue Because of Systemic Failure In Prison Medical Care, But Those on Home Confinement Should Consider their Options

 

by Derek Gilna

 

            As the various criminal justice reform bills move slowly through Congress, the Delta Variant of COVID-19 has wasted no time, quickly arrived in multiple federal prisons over the past month, including Aliceville, Bryan, and Waseca. This is  in all likelihood, fueled in large measure by unvaccinated correctional employees, especially in the South and West.  Although DOJ will do its best to suppress the information, the general public is already aware of the threat, as masks begin to  reappear even on vaccinated individuals. This new development reality should soften the impact of the rumor that CARES releasees currently on home confinement will have to return to prison when the pandemic is "over."  The fact is that the pandemic, at least in jails and prisons, will never be "over."  

            All of these health concerns somewhat lessened the concern about rumors that CARES will be terminated and those already on home confinement will have to return, as was rumored this week, but those concerns remain. If DOJ ends CARES there are two options: either Congress can pass a law allowing these people to continue or Biden can use his presidential clemency powers to commute their sentences. Biden is now being pushed by a coalition of 20 criminal justice reform activist groups to take action. I strongly urge those on home confinement to immediate renew their compassionate release petitions to convert their CARES release to a  "time-served" outcome. 

            The current COVID-19 surge in the U.S. — fueled by the highly contagious delta variant — will steadily accelerate through the summer and fall, peaking in mid-October, with daily deaths more than triple what they are now. That's according to new projections released Wednesday from the COVID-19 Scenario Modeling Hub, a consortium of researchers working in consultation with the Centers for Disease Control and Prevention to help the agency track the course of the pandemic. npr.org;  www.coronavirusmodelinghub.org.

            "What's going on in the country with the virus is matching our most pessimistic scenarios," says Justin Lessler, an epidemiologist at the University of North Carolina who helps run the modeling hub. "We might be seeing synergistic effects of people becoming less cautious in addition to the impacts of the delta variant." In the most likely scenario, Lessler says, the U.S. reaches only 70% vaccination among eligible Americans (it's now 60%), and the delta variant is 60% more transmissible. In that scenario, at the peak in mid-October, there would be around 60,000 cases and around 850 deaths each day, Lessler says with about 240,000 people getting infected and 4,000 people dying each day at the October peak, which would be almost as bad as last winter.

            As noted by correctional health expert, Cr. Homer Venters, "As the United States faces a deadly new wave of COVID-19 infections, we must address the low rates of vaccination among the nation’s half-million correctional officers. Across the nation’s 7,000 jails, prisons and other detention settings, these low rates threaten the lives of not only these staff and their communities but also detained and incarcerated people. These low rates also reflect deeper problems relating to the lack of attention to the health of correctional officers and detained people alike by the Centers for Disease Control and Prevention (CDC) and state departments of health" www.usatoday.com, 7-15-21.

            William Hanage, an epidemiologist at the Harvard T.H. Chan School of Public Health. "How (many new cases) will track with how many people are vaccinated in a given community." "I also strongly suspect that delta is highly prone to superspreading — if I am right, it might go off like a bomb in some under-vaccinated communities," Hanage adds.

            In every report issued by the DOJ's Office of Inspector General, that office found major deficiencies in all institutions' response to COVID-19,  none of which have been corrected. https://oig.justice.gov. . This level of medical support needed to deal with the pandemic does not exist in the federal prison system. DOJ, Office of Inspector General Review of FCOP Medical Staffing Challenges, at 1, (Mar. 2016).

            There is also reason for skepticism that even those vaccine administered to prisoners were properly stored and handled (kept in special freezing units)  prior to being given to prisoners, and whether the prisoners to whom it was administered had been properly tested and examined prior to the shots being given.  It is common knowledge that most of the prisoner shots were those that had been refused by correctional employees.

            This institutional incompetence also does not bode well for those who continue to suffer from "Long Covid," which even major hospital systems have had trouble treating. Long Covid—a term referring to symptoms that linger for weeks or months beyond infection—affects between 10% and 30% of people who catch the virus, including those with mild or asymptomatic infections, according to experts. In some cases, symptoms persist for more than a year. “Even if it’s not as striking as people dying, you ignore it at your peril,” said Danny Altmann, professor of immunology at Imperial College London. “In terms of healthcare burden or healthcare cost, we’re on track for this being as big a problem to us as rheumatoid arthritis, the biggest autoimmune disease in the world.”

The majority of people with long Covid report fatigue as the dominant symptom alongside muscle aches, difficulty sleeping and shortness of breath, according to a large study by researchers at Imperial College London. Another, smaller, cluster of patients reported predominantly respiratory symptoms, including shortness of breath and chest pain or tightness. Other studies have identified cognitive issues, or “brain fog,” as another common symptom. www.wsj.com.                                 In the circuits, US v. Brown, 20-2170, (8th Cir. 7-21-21), the Eighth Circuit vacated defendant's 72 month sentence for knowingly possessing a stolen firearm and remanded for resentencing before a different district court judge. In this case, defendant and the Government stipulated to a Sentencing Guidelines base offense level of 12. However, the Government later endorsed the PSR's contrary base offense level calculation of 20. The district court adopted the PSR's calculation. The court concluded that if the government breached the plea agreement in the case, a defendant may proceed with an appeal despite an appellate waiver; defendant preserved the issue for appeal; and the government breached the plea agreement. Even assuming a cure is possible, other circuits require that the government offer an unequivocal retraction of its erroneous position to sufficiently cure a breach. The court explained that the Government's conduct is a far cry from an unequivocal retraction. In this case, the Government's half-hearted and begrudging statement that the district court should follow the agreement was not enough.              In US v Webb,  19-6491, (4th Cir. 7-19-21), the Fourth Circuit affirmed the district court's judgment reducing defendant's sentence by two years, rather than the five years that defendant requested. Defendant sought a reduction in sentence under the First Step Act. The district court acknowledged that defendant had come a long way since the imposition of his original sentence but that he must take responsibility for his actions in a way that he failed to do during his initial sentencing hearing. The court held that district courts should be afforded significant discretion in addressing requests for sentence reductions under the First Step Act. In this case, the district court fully explained its decision to reduce defendant's sentence by two years, considering defendant's arguments and the nature of his offense, his characteristics, including both his post-sentencing mitigation evidence and his criminal record, his new guidelines sentencing range, and the new statutory mandatory minimum in fashioning defendant's sentence. Therefore, the district court did not abuse its discretion in sentencing defendant.            Be not afraid, and let not your heart be troubled. Federal Legal Center, Derek A. Gilna JD (De Paul Law, 1975), and MARJ (Vermont Law, 2020), Director,   113 McHenry Rd. #173, Buffalo Grove, IL, and Indiana, dgilna1948@yahoo.com, for English-language newsletters and questions in English and Spanish, federallc_esp@yahoo.com, Spanish language newsletter only.   Blogging at "Derek Gilna's Federal Criminal Justice Blog."

As DELTA Variant Spreads, BOP Medical System Still Not Capable of Protecting and treating Prisoners

 

COVID Delta Variant Numbers Jump, First Cases Reported in Federal Prisons;  CARES Likely to Continue; Federal Marijuana Reform Legislation Proposed

 

by Derek Gilna

 

            The number of new Delta-variant coronavirus cases is increasing in every state, setting off a growing sense of concern from health officials who are warning that the pandemic in the United States is far from over, and several federal prisons are reporting cases. Unfortunately, I expect DOJ to once again undercount active cases, and it is my opinion that we are back to where we were in March of 2020. There is continued serious risk to those federal prisoners who have no access to follow-up care which is limited by the low numbers of qualified medical professionals in the short-staffed and underfunded federal prison system.

            The risk is much greater in the South, which holds the lowest number of vaccinated people. Nationwide, fewer than 50% of federal prison staff have been vaccinated, and in the South that number is even lower.  Confirmed cases have occurred in Texas, Kentucky, and West Virginia facilities, and California is considered to also be at risk.

            The U.S. is averaging more than 23,000 new cases a day, double the seven-day average of around 11,300 cases three weeks ago, according to a Wall Street Journal analysis of data from Johns Hopkins University. On 17 of the past 18 days, the seven-day case average was higher than the 14-day average, also suggesting cases have been rising nationally.

             Hot spots have emerged in recent weeks in parts of Missouri, Arkansas and Nevada, among other states, leaving hospital workers strained as they care for an influx of coronavirus patients and hospitalizations are on the rise. Intensive care beds in hospitals have become scarce in parts of Missouri, where officials in Springfield on Wednesday asked for an alternative care site. In Mississippi, where cases are up 70% over the past two weeks, health officials have urged older adults to avoid large indoor gatherings even if they have been vaccinated.  www.yahoo.com, www.nytimes.com, 7-16-21.

            “This will definitely be a surge,” said Michael Osterholm, director of the Center for Infectious Disease Research and Policy at the University of Minnesota. “It won’t be as big as what happened in January. But we still have 100 million people in the United States who are susceptible to COVID-19.” The majority view of scientific research is that "properly vaccinated" individuals might still contract the new Delta variant, but have less severe symptoms.

            "Long Covid," which affects thousands in federal prison, is still a concern. More long Covid-19 patients are pushing to investigate what they believe is fueling some of their debilitating long-term symptoms: dormant viruses that have been reactivated by the coronavirus. An estimated 10% to 30% of all Covid-19 patients suffer from symptoms weeks and months after first getting the illness, including many young, previously healthy people whose initial Covid-19 cases were mild. Symptoms can include brain fog, fatigue, shortness of breath, racing heart beat and an inability to tolerate physical or mental exertion. Yet scientists still know very little about the causes of the condition, and have even fewer treatments to offer. www.wsj.com. In other words, if you entered prison with pre-existing conditions, you are more likely to suffer from this condition. symptoms.

            In June, a study published in the medical journal Pathogens suggested a possible association between Epstein-Barr reactivations (an often undiagnosed immune disorder)  and long Covid-19. In a set of 30 long Covid-19 patients, about 67% were positive for EBV reactivation, researchers found. That compared with about 10% of the control group, who had contracted Covid-19 but didn’t experience long-term symptoms. The researchers tested for reactivation based on the levels of two antibodies they say are associated with active or reactivated EBV infection. www.mdpi.com.

            Majority Leader Chuck Schumer's new federal marijuana reform bill, the Cannabis Administration and Opportunity Act.  The full text of this highly-anticipated bill draft runs 163 pages and covers all sorts of reform and regulatory issues related of federal marijuana law and policy .   Please note that there is a dedicated section (sec. 311) devoted to "RESENTENCING AND EXPUNGEMENT." More on this soon.

In the circuits: In US v. Sarchett, 20-2517, (8th Cir., July 12, 2021, the 8th Circuit reversed defendant's sentence in a case where defendant and the government entered into a plea agreement in which he stipulated that he had sold methamphetamine to a confidential informant for thirty dollars. The court agreed with defendant that the district court miscalculated his Sentencing Guidelines range when it found him responsible for drugs to which he had no connection. The district court committed procedural error when it found a connection between defendant and the materials found in his girlfriend's home and car. The court remanded for resentencing.           In US v Arrington, 19-3086, ( DC Cir. July 13, 2021, Arrington was convicted of assaulting a federal officer with a dangerous weapon and of unlawfully possessing a firearm as a convicted felon. The judge sentenced Arrington to 240 months. His sentencing range involved a higher base offense level for the unlawful possession of a firearm because he “had at least two prior felony convictions of either a crime of violence,” U.S.S.G. 2K2.1(a)(2); he also received an enhancement as “a career offender” because he had “at least two prior felony convictions of either a crime of violence,” U.S.S.G. 4B1.1. The judge applied the “residual clause” in the Guidelines' definition of "crime of violence."         In 2003, Arrington was denied post-conviction relief under 28 U.S.C. 2255. The Supreme Court rendered the Guidelines advisory while Arrington’s first petition was pending. In 2015, the Court held (Johnson) that the Armed Career Criminal Act’s “residual clause” was unconstitutionally vague. In 2016, the Supreme Court held that “Johnson announced a substantive rule that has retroactive effect in cases on collateral review.” Within a year of Johnson, Arrington sought leave to file a successive section 2255 motion challenging his sentence in light of Johnson ,but  the district court denied his motion as untimely. The D.C. Circuit reversed. The Johnson decision recognized a person’s right not to have his sentence dictated by the unconstitutionally vague language contained in a mandatory residual clause identical to that in the Guidelines.         Fear not and let not your heart be troubled. Federal Legal Center, Derek A. Gilna JD (De Paul Law, 1975), and MARJ (Vermont Law, 2020), Director,   113 McHenry Rd. #173, Buffalo Grove, IL, and Indiana, dgilna1948@yahoo.com, for English-language newsletters and questions in English and Spanish, (dagilna1948@yahoo.com for emergency use only); federallc_esp@yahoo.com, Spanish language newsletter only.   Blogging at "Derek Gilna's Federal Criminal Justice Blog."

Compassionate Release Court FIling Seen as a Way for CARE Releasees to Avoid Possible Return to Prison

 Levi Compassionate Release Highlights Possible "Trap" for CARES Releasees;  First Step Resentencing: What Are Your Chances?; Delta Variant Risk Increases; Supreme Court Ends Term with a Whimper, but New Petitions Target Key Sentencing Abuses

 

by Derek Gilna

 

            A little-reported court decision granting Compassionate Release to 76-year old CARES-releasee Gwen Levi is the most recent high-profile case that highlights the continuing risk for CARES prisoners that they will be forced to return to prison. Levi was one of 24,000 federal prisoners released under CARES, who were put at risk of re-arrest under a Department of Justice (DOJ) Department memo issued in the final days of the last administration that said inmates whose sentences extend beyond the pandemic must be brought back to prison. Levi was arrested for not answering US Probation's phone calls while she was in a computer class. The judge granted her motion for Compassionate Release and gave her time-served, and left her five-year supervised release intact. US v. Levy, 8:04-cr-00235, (D. of Md., 7-6-21).

            One of the possible byproducts of filing a petition for Compassionate Release-even if it is denied by the warden-is that it highlights to DOJ the extent of your chronic physical issues and definitely increases your chances for a CARES release. The downside for CARES releasees by Ms Levi is that Probation is always "in your business," making it imperative that you file a CR to reduce or eliminate that risk of re-arrest.

             The First Step Act (FSA) has clearly increased the chances for a sentence reduction under Section 404, giving your district court judge the power to resentence, but does not compel him/her to do so.   There are a whole list of factors for the judge to  consider, and you must overcome the automatic DOJ response that you are still a "threat to the community."  However, unlike second-successive 2255's, the bar for approval has been lowered, but it will require a well-drafted motion.

            Josh Manson, a researcher at the UCLA Law COVID Behind Bars Data Project, says that there have been few efforts to curb the Delta variant and COVID-19 overall, making prisons deadly places for transmission. “When the pandemic first hit in March 2020, prisons were not taking the situation seriously,” Manson says. “We know that it’s even more transmissible than it was the first time a year and a half ago. We’ve seen thousands of people die in jails and prisons.” According to Manson, the current death count is an underestimate. “There’s evidence emerging that the counts that have been recorded are actually undercounted,” Manson explains. “So we don’t even know the true totals of how many people died.” www.verywellhealth.com, 7-9-21.

            The reports of increased clemencies refuse to go away, as administration officials, bogged down in Congress by , weigh the positive benefits of bold action to shore up the public perception that Biden has accomplished little of what he promised in the first six months of office. Now is the time to seriously consider this option.   Those with Compassionate Release petitions pending are still eligible for pardons or commutations.

            Although recent Supreme Court decision did little to assist current prisoners in the last term, the new petitions in Osby and Bryant look promising. According to the federal Sentencing Guidelines, a judge may adjust the recommended range of an offense based on a defendant’s “relevant conduct.” and can include acquitted conduct.        

            In Osby v. United States, Erick Osby was indicted on seven charges; the jury convicted him of two and acquitted him of the other five. But because the judge considered his acquitted charges as relevant conduct, his sentence was the same as it could have been had he been convicted by the jury of all seven charges. Osby argues that adjusting a sentence based on acquitted conduct violates his rights under the Fifth and Sixth Amendments, which guarantee due process under the law and the right to a jury trial. While the Supreme Court has declined to address similar questions on this topic in the past, some of the justices have expressed their discontent with the practice of using acquitted conduct in sentencing decisions. Osby asks whether the practice is unconstitutional.

Another new case,  Bryant v. United States, presents a question regarding the compassionate-release provision of the federal criminal code, as amended by FSA. The compassionate-release provision allows a district court to grant a sentence reduction and order immediate release upon a finding that a federal prisoner’s circumstances are “extraordinary and compelling” and that the sentence reduction is “consistent with applicable policy statements issued by the Sentencing Commission.”

            In 2019, Thomas Bryant filed a motion for compassionate release in district court. The government opposed his motion and argued that the reasons given in Bryant’s motion did not satisfy the criteria in the 2007 policy statement. The government argued that the 2007 policy statement was an “applicable” policy statement under the compassionate-release provision and that the district court was thus bound by it. The district court denied Bryant’s motion and the  11th Circuit affirmed. There is a circuit split over whether district courts are bound by the 2007 policy statement when deciding defendant-filed motions. He seeks review to clarify what constitutes an “applicable” policy statement for defendant-filed motions under the First Step Act.

            Congress and the President are also under heavy pressure to amend the PATTERN Risk Assessment tool created under FSA, to reduce the long list of disqualifying offenses for the ETCs, an inordinately complicated system for linking risk and needs assessments to the calculation and application of ETCs, credits that do not directly shorten prison terms (because of the 85 percent rule) but instead extend time spent in “prerelease custody” except to allow early transfer to supervised release (functionally shortening the prison term), and numerous reporting requirements.

            As usual, DOJ has used its discretion to reduce the sentence-reduction impact of FSA. Final rules have yet to be written, giving the new administration a lot of power to make changes to make programming more attractive. The new fascination with racial "equity" makes it highly likely that there will be substantial changes to DOJ's original PATTERN criteria.

            Finally, although the summer vacation season has temporarily reduced the number of appellate decisions, there is good news on another generally-forgotten front, those under "Old Law" jurisdiction, who have not been able to take full advantage of FSA. A bipartisan press release called for the following: "We are writing to highlight the situation of 236 "old law" federal prisoners, and to urge you to support their emergency release...just 236 people are still serving parole-eligible sentences. These 236 people were sentenced for federal crimes committed before 1987, when parole was abolished... Every one of these people has been eligible for release for many years, so there is no statutory bar to their release now." Let's make it happen.

            DOJ, under pressure from Congress to continue CARES releases, is now also confronting the issue that in some institutions, especially camps which hold only minimal or law risk individuals, the ration of prisoners to staff is approaching one-to-one, putting their continued existence in question. Congress should increase its oversight of these prisons to make sure that CARES-release decisions are not influenced by prison staff's fear of unemployment.

            Be not afraid and let not your heart be troubled.

 

Federal Legal Center, Derek A. Gilna JD (De Paul Law, 1975), and MARJ (Vermont Law, 2020), Director,   113 McHenry Rd. #173, Buffalo Grove, IL, and Indiana, dgilna1948@yahoo.com, for English-language newsletters and questions in English and Spanish, (dagilna1948@yahoo.com for emergency use only); federallc_esp@yahoo.com, Spanish language newsletter only.   Blogging at "Derek Gilna's Federal Criminal Justice Blog."  

Delta Variant Newest Threat to Prisoners in Medically Incompetent Federal Bureau of Prisons, Experts and Prison Guards Agree

Nation Celebrates Fourth of July and Joys of Freedom. but  Prisoners Know Its True Worth; Delta Variant Continues to Spread; DOJ Guards Union Comments on Medical Care; IRS Has Over 35 Unprocessed Million Tax Returns

 

by Derek Gilna

 

            While Americans take time off to celebrate the abstract concept of "freedom," they could benefit from hearing the voices of the imprisoned, for it is they who truly appreciate its worth. Fortunately for them, all the signs for further reform are still positive in all three branches of government. Criminal justice reform continues to enjoy wide support.

            In the Supreme Court, the justices will study the application of 924(c)'s added mandatory punishments for gun use in the case of United States v. Taylor, 20-1459, which formally presents this question: "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). This development is clearly overdue.

            The Senate continues focusing on a pervasive overhaul of the criminal justice (and more restrictive oversight of the prison system)  system that advanced under Trump.  Senate Judiciary Chair Dick Durbin (D-Ill.) described criminal justice reform as a “personal priority” for himself and his GOP counterpart, Iowa Sen. Chuck Grassley. House Democratic Caucus Chair Hakeem Jeffries (D-N.Y.) said this week that he expects both chambers will "be moving a series of bipartisan criminal justice reform bills.        The Senate Judiciary Committee has approved three bills co-sponsored by Durbin and Grassley.  The first would give inmates the ability to petition for the sentencing changes established in 2018 to apply retroactively, among other provisions.  The second would prohibit a judge from considering any conduct for which a defendant was acquitted in sentencing. Finally, the third would expand eligibility for a program that allows elderly prisoners to serve out the remainder of their sentences at home.  That measure also includes a provision that would allow vulnerability to Covid-19 to qualify as a reason for compassionate release.

            Advocates are hoping to see further movement before Congress leaves for its scheduled August recess, Durbin said he is working to pass his bills by voice vote, but if that doesn’t work he will ask Senate Majority Leader Chuck Schumer (D-N.Y.) for floor time.  Grassley predicted that some time in the fall would be more likely.       The President is also under heavy pressure to complete his clemency overhaul and make good his promise to make a bold statement on clemencies in his first year in office.

            The more dangerous and more transmissible Delta variant has spread to nearly every state in the US, feeding health experts' concern over potential COVID-19 spikes in the fall. The variant was first identified in India and is now considered a variant of concern by the US Centers for Disease Control and Prevention, meaning scientists believe it can spread more easily or cause more severe disease. The Delta variant now accounts for about 1 in every 5 new coronavirus infections in the US, the CDC has said. And with more than half of the population still not fully vaccinated, according to the CDC, health experts and officials worry that regions with low amounts of virus protection could see surges in the fall and winter. https://covid.cdc.gov; www.ap.com.

            “A great many of the (prisoners) who ever had COVID, they were never tested,” said Dr. Homer Venters, a former chief medical officer of the New York City jail system who has inspected health conditions in prisons around the country over the last year. “In most prisons it ran through these places like wildfire. People were never tested.” www.ap.com.

            I was not surprised to hear a multitude of comments regarding incompetent  federal prison medical care, but was surprised that national media appears to have new interest in this story. Union leaders, prison health care workers and advocates for prisoners’ rights said it was troubling that the people leading the federal prison system’s Health Services Division during the COVID-19 crisis lacked medical licenses. The prison system came under fire last year from politicians and union leaders for pressuring guards to come to work sick, failing to follow its own pandemic plan and buying knock-off N-95 masks. “This is why our agency is broken,” said Joe Rojas, a union leader who works at the Coleman prison complex in Florida. “You have people who are unqualified and you have a medical pandemic, but the leadership has zero medical background.” www.themarshallproject.org.

            The IRS has admitted that it has over 35 million unprocessed tax returns, a staggering number for early July.   This number does not even begin to account for the thousands of inquiries and amended return/change of address forms that have been filed, further delaying refunds.   Make sure your forms are filed, but patience will be required.

In the circuits, in US v. Brenner,  19-5647, (6th Cir. 7-1-21) Brenner pled guilty without a plea agreement to being a felon in possession of a firearm and in possession of ammunition, 18 U.S.C. 922(g).He had three Tennessee felony convictions: aggravated assault in 2005, aggravated assault while acting in concert in 2014, and reckless aggravated assault in 2014. Under ACCA, 18 U.S.C. 924(e)(1), Brenner had to be sentenced to a 15-year minimum for her section 922(g) convictions if the government proved that she had three prior convictions for “violent felonies” having “as an element the use, attempted use, or threatened use of physical force against the person of another.” The district court agreed with Brenner that her reckless aggravated assault conviction is not a “violent felony” and sentenced Brenner to a within-Guidelines term of 110 months’ imprisonment. The Sixth Circuit held the government’s appeal in abeyance and dismissed the appeal after the Supreme Court’s 2021 Borden holding that the ACCA’s elements clause does not “include offenses criminalizing reckless conduct.” ACCA’s use of the phrase “against another” “demands that the perpetrator directs his action at, or target, another individual,” and “[r]eckless conduct is not aimed in that prescribed manner.”                 In US v Heyward, 19-1054, (2nd Cir. 6-28-21) the defendant was convicted of conspiracy to participate in a racketeering enterprise, in violation of 18 U.S.C. 1962(d) (Count One); conspiring to distribute narcotics, in violation of 21 U.S.C. 841(b)(1)(A), 846 (Count Two); and possessing or aiding and abetting the possession of firearms in furtherance of either the racketeering conspiracy or the narcotics conspiracy charged in the prior two counts, in violation of 18 U.S.C. 924(c) (Count Three). The jury specially found that the pattern of racketeering activity charged in Count One encompassed both narcotics and murder conspiracy conduct. The jury also found that a firearm relevant to Count Three was discharged in furtherance of the Count One racketeering conspiracy but was not discharged in furtherance of the separate Count Two narcotics conspiracy. The district court sentenced defendant to 120 months' imprisonment for Count Three, to be served consecutive to his concurrent 120-month sentences for Counts One and Two. The Second Circuit concluded that its recent decisions in the wake of United States v. Davis, 139 S. Ct. 2319 (2019), preclude section 924(c) from being applied to a murder conspiracy.  Therefore, given the possibility that defendant's section 924(c) conviction was based on murder conspiracy conduct rather than on a qualifying drug-trafficking offense, the court held that his conviction on Count Three is invalid. Accordingly, the court vacated defendant's section 924(c) conviction and remanded for further proceedings.                                                                                                                                                 Be not afraid and let not your heart be troubled.   Federal Legal Center, Derek A. Gilna, JD< (De Paul 75), MARJ, (Vermont LS 2021), Dir., 113 McHenry Rd., #173, Buffalo Grove, IL  60089 (And also Indiana) dgilna1948@yahoo.com (alternated: dagilna1948@yahoo.com), for English newsletter and questions in both English and Spanish; federallc_esp@yahoo.com, Spanish newsletter only; Blog at : "Derek Gilna's Federal Criminal Justice Musings and Reflections."

CARES Releases Continue; Justice Reform Bills Wait their Turn in Congress

 

CARES Releases Continue: New Congressional Bills Filed as Reform Momentum Builds; New COVID Delta Variant Spreads; DOJ Personnel Shortages Threaten Programming and Sentence Credit

 

by Derek Gilna

 

            A random sampling of responses from various institutions  shows that there appears to be a direct correlation between individuals filing well-drafted compassionate release petitions in court, and CARES relief being granted. Although rumors are rampant that a "memo" exists for this new initiative, it has not yet been made public. However, given the low level of effective vaccination of prisoners, and the usual DOJ inefficiency in offering follow-up medical care for the previously infected,  a court petition would certainly be advisable at this time

            The quick spread of the new Delta COVID variant in the US is causing official  concern. According to the Associate Press, Tedros Adhanom Ghebreyesus, the head of the World Health Organization said the Covid-19 delta variant, first seen in India, is “the most transmissible of the variants identified so far,” and warned it is now spreading in at least 85 countries, including the US, where it has replaced the original COVID virus in many areas.

            Public-health officials say Delta is very risky to unvaccinated people. It is about 50% more transmissible than the current dominant U.S. strain, Alpha, which itself is 50% more transmissible than the most commonly circulating strain last year. "This variant represents a set of mutations that could lead to future mutations that evade our vaccines, and that’s why it’s more important than ever to get vaccinated now, to stop the chain of infections, the chain of mutations that could lead to a more dangerous variant," said Centers for Disease Control and Prevention Director Rochelle Walensky.

www.wsj.com;   6-23-21

            "The global situation is incredibly fragile,” said Maria Van Kerkhove, the WHO’s technical lead on Covid-19.“The delta variant, the virus, will continue to evolve,” he said. “Right now our public health and social measures work, our vaccines work, our diagnostics work, our therapeutics work. But there may be a time where this virus evolves and these countermeasures don’t.”www.ap.com. Needless to say, after-care in DOJ is non-existent.

            This, combined with the uncertainty of the long-term effectiveness of the vaccines, which were rolled out without the usual waiting period to determine the existence of any serious side-effects, means that federal prisoners are still at risk.

            The Biden administration endorsed legislation today that would finally end the federal sentencing disparity between crack and powder cocaine offenses, and close the book on one of the most destructive parts of Joe Biden's legacy as a senator.

Regina LaBelle, acting director of the White House Office of National Drug Control Policy, said in prepared remarks at a Senate Judiciary Committee hearing last week said that the Biden administration "strongly supports" eliminating the sentencing disparity between crack and powder cocaine. The EQUAL Act, a bill sponsored by Senate Majority Whip Dick Durbin (D–Ill.), Sen. Cory Booker (D–N.J.), and Sen. Rob Portman (R–Ohio)  would erase that sentencing disparity.

            A new study by the DOJ Inspector General (OIG) finds that the federal prison system is severely understaffed: " Nearly one-third of federal correctional officer jobs in the United States are vacant, forcing prisons to use cooks, teachers, nurses and other workers to guard inmates. The expanded use of that practice, known as augmentation, has been raising questions about whether the agency can carry out its required duties to ensure the safety of prisoners and staff members while also putting in place programs and classes required under the law." www.doj.gov. Staff shortages are nothing new, but Biden officials are increasingly disenchanted with the embarrassing lapses in institutional management, removing or reassigning multiple wardens and upper level staff, and reviewing the current director's performance.

            Based upon a deluge of complaints from prisoner families, multiple investigations are also ongoing, especially in one particular women's institution, long known for shoddy management, and poor medical care. Although the government (and DOJ) is known for minimizing the misconduct of its employees, this is one instance where some staff might pay the price.

            After the COVID-19 pandemic impacted prisons across the country, infecting hundreds of thousands of people and causing thousands of deaths, U.S. Senator Brian Schatz (D-Hawai‘i) today reintroduced the EMERGENCY GRACE Act, that would accelerate DOJ's approval process for compassionate release during a public health emergency. “People who are eligible for compassionate release are the most vulnerable to public health emergencies like COVID-19, and they are needlessly being put at risk because the process takes too long,” said Senator Schatz. “Our bill will help speed up the approval process so that sick and elderly who qualify for compassionate release get it.”

            In the circuits, In Broadway v. US, (10th Cir. June 22, 2021)  the court reversed a denial of a motion for reduction of sentence under First Step. Section 404 of the First Step Act "opened the courtroom doors" to these defendants to move for discretionary sentence reductions based on the retroactive application of the Fair Sentencing Act. The Tenth Circuit Court of Appeals found that although the remedial purpose of section 404 was clear, its language had not been interpreted uniformly. Because application of section 404(b) "should not vary from defendant to defendant," the Court concluded that before a district court exercises its discretion, "it should look to the drug quantity and Sentencing Guidelines associated with an eligible defendant’s offense of conviction, rather than his underlying conduct, to 'impose a reduced sentence as if . . . the Fair Sentencing Act . . . were in effect at the time the covered offense was committed.'” The district court did not do so here, so denial of defendant-appellant Jason Broadway's petition for sentence reduction was reversed.

            Be not afraid and let not your heart be troubled.

 

Federal Legal Center, Derek A. Gilna, JD, DePaul Law, 1975, Master of Restorative Justice (MARJ), 2020, Vermont Law School, Director, 113 McHenry Rd. #173,  Buffalo Grove, IL   60089, (and Indiana).dgilna1948@yahoo.com (emergency alternate: dagilna1948@yahoo.com); English and Spanish questions, and English language newsletter; federallc_esp@yahoo.com, Spanish newsletter; blogging at "Derek Gilna's Federal Criminal Justice Musings and Reflections."

           

Plight of Covid "Long-Haulers" Highlights Threat of BOP Medical Indifference to Prisoner Suffering

 

Federal Prison System Fails to Treat COVID "Long-Haulers" Continuing Symptoms

 

by Derek Gilna

 

            Although most of the country has reopened with minimal restrictions, and new COVID cases have dropped to the lowest level since March of 2020, the pandemic continues in prison, for a variety of reasons. First, DOJ continues to try to sweep the problem under the rug. As the Marshall Project reports: "Our understanding of the full toll of the pandemic on incarcerated people is limited by the (DOJ's) policy of removing cases and deaths from its reports in recent months. As a result, we cannot accurately determine new cases in federal prisons, which have had more people infected than any other system." themarshallproject.org.

            Two, although DOJ claims that it has vaccinated approximately half of the prisoners in its custody, doubts remain as to the accuracy of that figure. Given improper handling of the vaccine at various institutions, it is questionable whether or not some of those does were effective. Third, and most importantly, DOJ continues to withhold treatment from previously infected persons, nationwide.   I know of not one instance where any prisoner suffering severe symptoms has received the necessary specialized treatment that is available.

            "Older people and people with many serious medical conditions are the most likely to experience lingering COVID-19 symptoms, but even young, otherwise healthy people can feel unwell for weeks to months after infection. ( These can include:) Fatigue, Shortness of breath or difficulty breathing, Cough, Joint pain, Chest pain, Memory, concentration or sleep problems, Muscle pain or headache, Fast or pounding heartbeat, Loss of smell or taste, Depression or anxiety, Fever, Dizziness when you stand. Worsened symptoms after physical or mental activities." www.mayoclinic.org.

            Mayo continued: "Although COVID-19 is seen as a disease that primarily affects the lungs, it can damage many other organs as well. This organ damage may increase the risk of long-term health problems. Organs that may be affected by COVID-19 include:

Heart. Imaging tests taken months after recovery from COVID-19 have shown lasting damage to the heart muscle, even in people who experienced only mild COVID-19 symptoms. This may increase the risk of heart failure or other heart complications in the future. Lungs. The type of pneumonia often associated with COVID-19 can cause long-standing damage to the tiny air sacs (alveoli) in the lungs. The resulting scar tissue can lead to long-term breathing problems. Brain. Even in young people, COVID-19 can cause strokes, seizures and Guillain-Barre syndrome — a condition that causes temporary paralysis. COVID-19 may also increase the risk of developing Parkinson's disease and Alzheimer's disease. Some adults...experience multi-system inflammatory syndrome after they have had COVID-19. In this condition, some organs and tissues become severely inflamed."

            See also: Berkeley Lovelace, Jr., “Dr. Fauci Says New Data Suggests ‘Long’ Covid Symptoms Can Last Up to 9 Months,” CNBC, February 24, 2021, https://www.cnbc.com/2021/02/24/fauci-says-new-data-suggest-long-covid-symptomscan-last-up-to-9-months.html. And: Johns Hopkins Medicine, “COVID ‘Long Haulers’: Long-Term Effects of COVID-19,” April 1, 2021, https://www.hopkinsmedicine.org/health/conditions-and-diseases/coronavirus/covid-long-haulers-long-term-effects-ofcovid19

            Needless to say, no DOJ institution is equipped to perform these diagnostic checks and it is highly unlikely that you will be sent out to have them done. If you are skeptical of this statement, you need only study the matter of Michelle McGee, who complained about being denied simple diagnostic tests for many  months after she showed clear symptoms of cancer, before she was finally released. Yet another woman, a pre-trial detainee, recently died at Carswell, who received no treatment for persistent  chest-pains.

            Congress has noticed, and introduced a new piece of legislation to address this very issue: S. 2095: A bill to expand compassionate release authority and elderly home confinement access for offenders with heightened coronavirus risk.

            There is other good news on the federal legislative front, as elected representatives continue to introduce proposals that will have an immediate impact on federal incarceration.   As reported in the Federalist, "on June 15, ... Democratic Representatives Bonnie Watson Coleman (D-NJ), and Cori Bush, (D-MO), have unveiled the Drug Policy Reform Act (DPRA) to help right some of its wrongs. The bill, developed with the help of the Drug Policy Alliance (DPA) and the first of its kind, would end criminal penalties for all drug possession at the federal level. It would also transition regulatory power from the attorney general to the secretary of health and human services (HHS), expunge drug-related criminal records and provide for resentencing options, and invest in health-centered approaches to drug use. The legislation additionally addresses many lifelong ramifications associated with drug convictions, like denial of employment, voting rights and immigration status."   All other bills in both the House and Senate continue to await introduction to the full bodies for a vote, while the infrastructure bill dominates Congressional schedules. It was also reported that there remain 93 vacancies for head AUSA's, and multiple key positions in DOJ, showing the Biden administration is still struggling to manage criminal justice reform expectations after five months.

There were two interesting cases recently in the 7th Circuit. In the first, US v. Fowowe, 20-3197, decided June 16, 2021, a crack offender sought re-sentencing under First Step.   The court asked: "Does § 404(b) authorize or require a district court to apply a judicial decision issued after the defendant was initially sentenced? ...We hold that § 404(b) authorizes but does not require district courts to apply an intervening judicial decision in evaluating First Step Act motions. Given this, we conclude the district court did not abuse its discretion in declining to recalculate Fowowe’s sentencing range. We now affirm."         In the second case, US v McHaney, 20-1690, June 14, 2021, an offender was charged with Hobbs Act (HA) Robbery, HA conspiracy and attempted HA robbery, and "three counts of 18 USC 914(c)(1)(A)." The Seventh Circuit affirmed, declining to reject its precedent that Hobbs Act robbery meets the definition of a crime of violence under 18 U.S.C. 924(c) and is a qualifying predicate crime under the statute. Putting any person in fear in the context of robbery necessarily involves “the use, attempted use, or threatened use of physical force against the person of another.“Every other court of appeals to have considered this agrees with this conclusion.”

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, (newsletter in English and questions in English and Spanish); federallc_esp@yahoo.com, (Spanish Newsletters only). Blog: Derek Gilna's Federal Criminal Justice Musings and Reflections, at Google blogspot.