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Of possible interest to federal prisoners, those subject to a term of federal im1st-Step-231x300prisonment and their respective attorneys and loved ones is this article I recently wrote for NACDL’s The Champion regarding the FIRST STEP Act. Among the provisions of the new law that the article addresses are the incentivized rehabilitative programming-based earned credit system, changes to motions for reduction in sentence pursuant to 18 U.S.C. § 3582(c)(1)(A) (also known as “compassionate release”) that increase prisoners’ access to the courts, and an initiative by which “elderly” and “terminally ill” prisoners can secure earlier transfers to home confinement.

 

 

 

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Yesterday, news spread rather quickly that notorious Boston crime figure and FBI informant Whitey Bulger had been killed at USP Hazleton (WV). Over the last 24 hours, reports have trickled out concerning the nature and circumstances of Bulger’s death. According to The Boston Globe, Bulger was attacked “[w]ithin hours of his arrival” at Hazelton: “Two inmates were under investigation in the attack […] captured on video surveillance entering Bulger’s cell around 6 a.m., according to one of the people. It was about two hours later that Bulger was found beaten, with his eyes nearly gouged out, the people said.”

That other inmates would seek to do Bulger harm is no surprise given his well-publicized assistance to federal authorities over the years (i.e., status as a ‘snitch’). The question would seem to be: Why was he moved to USP Hazelton? and How would other inmates have gained access to his cell when he was apparently still in Admissions and Orientation (being received upon transfer to the prison)? According to The New York Times, Bulger had been moved repeatedly while in federal custody (from USP Tucson, where he reportedly “was stabbed by another inmate” to USP Coleman, where he reportedly “threatened a staff member”), as his health steadily worsened: “Mr. Bulger had suffered a series of heart attacks while in prison — more than half a dozen over the years.” Indeed, there are reports that not only did Bulger suffer from “deteriorating health and a heart condition,” but he was also “using a wheelchair.”

Recognizing that Bulger’s medical accommodation needs may not have risen to the level justifying placement at a Federal Medical Center (FMC), the BOP does operate geriatric units, including at FCC Terre Haute. However, rather than being sent to an FMC or to a geriatric unit, he was transferred to a high-security prison where, last year, the Times found there had been “275 violent episodes, including fights among inmates and major assaults on staff, an almost 15 percent increase from 2016.” Notably, “Mr. Bulger appears to have been at least the third inmate to die as a result of violence at the Hazelton prison this year.”

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In 2002, the Bureau of Prisons, in response to an opinion by the Department of Justice’s Office of Legal Counsel, changed its halfway house policy, limiting placements to the final 10% of a prisoner’s sentence. As discussed here, this was a dramatic shift from the agency’s historic practices, which placed certain nonviolent offenders serving short sentences directly into halfway houses and made use of these prison facilities on the back-end of sentences to effectuate successful community re-integration. Following years of litigation, the Second Chance Act served to end the Bureau’s unlawful policy change, and, during the Obama administration, the Bureau began to make broader use of pre-release options, that is, both halfway houses and home confinement. (See here p. 38).

Over the last two years, there has been a growing body of anecdotal evidence that the Bureau has renewed efforts to restrict pre-release placements. Today, Justin George at The Marshal Project has published an excellent piece detailing the tensions between the President’s claimed interest in prison reform and the Attorney General’s interest in more severe penalties for criminal offenders:

Under the Obama administration, the number of federal prisoners in halfway houses and other transitional programs boomed. The federal government required the privately-run residences to provide mental health and substance abuse treatment, and the Department of Justice also increased access to ankle monitors so more prisoners could finish sentences in their own homes.

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In my work with federal prisoners, I am frequently asked to assist individuals who qualify for the Bureau of Prisons’ 500-hour RDAP despite their presentence investigation reports suggesting otherwise. In particular, there are individuals who under-report substance use/abuse to Probation during the presentence interview. This often occurs with individuals who consider themselves “social drinkers,” that is, individuals who do not perceive their drinking as an “issue.” Experience suggests that for individuals who drink regularly, how they view their drinking can differ markedly from how a trained clinician may see it. Thankfully, as discussed in this NPR story, NIH has produced a new tool to help individuals (and their attorneys) assess the nature and import of their alcohol consumption patterns and to identify appropriate treatment providers:

https://www.rethinkingdrinking.niaaa.nih.gov/How-much-is-too-much/Is-your-drinking-pattern-risky/Whats-Your-Pattern.aspx

https://www.rethinkingdrinking.niaaa.nih.gov/How-much-is-too-much/Whats-the-harm/What-Are-Symptoms-Of-An-Alcohol-Use-Disorder.aspx

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The situation at FCC Beaumont has continued to draw media attention. Wednesday, BuzzFeed News published an article based on interviews with seven inmates’ relatives.

But while the high water in Beaumont was so destructive that it disabled the city’s water supply system, the federal prison located in the city did not evacuate, leaving inmates stuck in their cells as water rose as high as their ankles and the smell of sewage from backed-up toilets grew so putrid that some wrapped towels over their noses before going to sleep. Federal prison officials did not immediately respond to inquiries about the claims, which were consistent among the seven relatives — all women — of inmates who spoke to BuzzFeed News.[.…]

Four of the women who spoke to BuzzFeed News said that the inmates at the medium-security unit were given two 16-ounce bottles of water per day, along with two sandwiches (bologna or peanut butter and jelly). At the maximum-security unit, the daily water ration for each inmate was two eight-ounce bags, two women said.

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Four institutions comprise the Federal Correctional Complex (FCC) in Beaumont, Texas: a United States Penitentiary (USP), a medium- and low-security Federal Correctional Institution (FCI), and a minimum-security camp. Approximately 5,400 inmates are housed between the four facilities. Given recent media account about Tropical Storm Harvey’s impact on Beaumont, Friday I e-mailed the FCC, where visitation has been suspended indefinitely. Specifically, I inquired as to whether there was any information that could be shared with attorneys and passed along to clients’ families. On Sunday afternoon, I received this response:

At this time, the power has been restored to FCC Beaumont, and generator power is no longer being used. The Inmate Telephone System (ITS) is currently operational. The FCC continues to use its own reserve of water to operate the Complex. There is ample food and bottled water for inmates and staff.

The response is consistent with updates the institution has been providing. However, Beaumont inmates and their loved ones are telling a different story. Friday’s Houston Chronicle included an account from one FCI inmate:

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CTSTAR-logo-rgbLike a growing number of jurisdictions, the District of Connecticut has a Support Court program (reentry court) that works closely with individuals on federal supervised release, as well as a select number of defendants who have plead guilty and are awaiting sentencing. The program has been an incredible asset since its inception. However, like many useful programs, it wants for funding. In this regard, CT Star has started a fundraising effort. In particular, CT Star is enlisting the help of judges, attorneys, court personnel, etc. to volunteer to run in the October 8 Hartford Marathon.

Although the first time since the 2002 D.C. Marathon that I’ve run (in the training sense), I have registered for the half-marathon at the persistent urging of my friend and colleague Audrey Felsen. This is a great cause and one to which I hope you can donate.

Click here for my fundraising page. Knowing that there are those willing to help CT Star meet (and hopefully far exceed) it’s $7,500 goal, will definitely serve as encouragement on those days I’d rather do anything then get up early and get in some miles. More than that, however, the moneys will prove invaluable to a population that is too often overlooked, namely individuals committed to getting their lives back on track. It is only with the help of Support Court and you that a greater array of services can be provided. PLEASE DONATE NOW!!!

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I have written before about the Bureau of Prisons’ atrocious performance serving as gatekeeper for “compassionate release” motions under 18 U.S.C. § 3582(c)(1) (and Guideline Section 1B1.13). Sadly, matters have improved little. Over at the Cato Institute, Nat Hentoff shines a light on the Bureau’s continued resistance to affording judges the opportunity to reconsider sentences previously imposed, often decades prior.

Hentoff details the dogged, pro bono efforts of Attorney Ellen Lake and “the case of 94-year-old Carlos Tapia-Ponce, one of the oldest inmates in the Federal Bureau of Prisons (BOP), who is serving a life sentence for managing a warehouse that was the site of what to this day remains the largest cocaine seizure in history.” Having had no success with an application for executive clemency filed as part of the Department of Justice’s clemency initiative, Attorney Lake began pursuing Mr. Tapia-Ponce’s compassionate release. And, when the Director refused to act on (approve or deny) the most recent recommendation that a motion be filed, Attorney Lake sought relief directly from the sentencing court.

Tapia-Ponce had been recommended for a compassionate release/reduction in sentence (CR/RIS) on two separate occasions by two different BOP wardens. The first request was filed in 2013 and denied the following year. The second petition, filed in August 2015, was still pending when Tapia-Ponce’s health deteriorated to the point where he was transferred to a BOP medical center in North Carolina.

Lake’s repeated telephone calls to the BOP’S General Counsel’s office were ignored. Concerned with her client’s failing health, Lake filed a motion asking the U.S. District Court to compel the BOP to rule on Tapia-Ponce’s pending CR/RIS petition.

A day before the scheduled court hearing, and without informing Lake of the decision before she traveled from Oakland to Los Angeles to attend the court appearance, the BOP issued its second denial of Tapia-Ponce’s petition. The government’s official notice of denial confirmed Tapia-Ponce’s many medical problems, including severe degenerative heart disease and prostate cancer.

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Last May, I had the pleasure of presenting via a webinar sponsored by the Association of Federal Defense Attorneys: Understanding the BOP’s 500-Hour Residential Drug Abuse Program (RDAP). That program, which runs more than an hour-and-a-half, is now available on-line.

For those unfamiliar with the AFDA, it regularly offers excellent, topical CLE for federal practitioners. The programs are webinar-based, meaning, among other things, that they can be accessed at one’s leisure from the AFDA’s archive. Individuals interested in joining the AFDA can click here.

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