During opioid press conference, Sessions says Justice Department will investigate GOP memo claims

Attorney General

Jeff Sessions

U.S. Attorney General Jeff Sessions. mark reinstein / Shutterstock.com

Attorney General Jeff Sessions told reporters Tuesday that the Justice Department is investigating claims in a GOP memo that prosecutors failed to fully disclose the source of evidence presented to the Foreign Intelligence Surveillance Court.

Sessions made the disclosure during a press conference about the formation of a Justice Department task force to fight the opioid epidemic, Politico reports.

The GOP memo says a Russia dossier partly financed by the Clinton campaign was an “essential part” of an application for surveillance of a former campaign adviser to Donald Trump, but the Democratic connection was not disclosed.

“We believe the Department of Justice must adhere to the high standards in the FISA court and, yes, it will be investigated,” Sessions said. “And I think that’s just the appropriate thing.”

The subject of the press conference was the creation of a Prescription Interdiction & Litigation Task Force in the Justice Department, which will be known as the PIL Task Force. The task force will use federal civil and criminal remedies to target the unlawful practices of opioid manufacturers and distributors, report the Washington Post and CBS News. A press release is here.

The Justice Department will also file a statement of interest in a multidistrict action involving hundreds of lawsuits against opioid manufacturers and distributors. The statement will argue the federal government should be reimbursed for the costs it has incurred in the opioid epidemic.

PIL will examine existing lawsuits by state and local governments to examine what help, if any, that federal law can provide, according to the press release. The task force will also use criminal and civil actions to ensure that distributors and pharmacies are obeying Drug Enforcement Administration rules designed to prevent diversion and improper prescribing.

The Justice Department will target the opioid crisis from “every angle,” Sessions said.


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ACLU sues over ICE’s detention of immigrant mom, 7-year-old daughter in separate facilities

Immigration Law

Otay Mesa

The Otay Mesa Detention Center in San Diego. Photo by Earnie Grafton.

The American Civil Liberties has sued the Trump administration on behalf of a Congolese woman and her 7-year-old daughter who were separated by immigration officials and sent to different detention facilities, despite having passed a “credible fear interview.”

The Washington Post, the Wall Street Journal and the Associated Press have the story.

The mother and daughter have been separated for close to four months, with the daughter, called “S.S.” in the suit, staying at a facility in Chicago and the mother, called “Mrs. L.,” at the Otay Mesa Detention Center in San Diego. They left the Congo fearing for their lives because they are Catholic and government security forces there have killed Catholics protesting against the country’s president, the ACLU’s complaint says.

They approached the U.S. border from Mexico and came to the San Ysidro, California Port of Entry on Nov. 1. An asylum officer determined the mother “did have a significant possibility of ultimately receiving asylum and therefore allowed her to move on to the next stage,” according to the suit.
But after four days in “some sort of motel,” the two were separated and moved to their current locations.

U.S. Department of Homeland Security officials and the agency’s former secretary, John Kelly, now White House chief of staff, have said the agency has considered separating immigrants and their children when they try to cross the border illegally as a deterrent, the Wall Street Journal reports. For now, some parents and children are separated if a parent has a serious criminal history or the child’s welfare is in question.

Trump administration officials have said the asylum process is overwhelmed with frivolous claims, the Associated Press reports. The Department of Homeland Security declined to comment to the Wall Street Journal or AP.

The administration has cracked down on illegal crossings of the border with Mexico, and in January, Tom Homan, acting director of the U.S. Immigration and Customs Enforcement, told the AP that there “have been some separations done,” such as when parents have been accused of paying smugglers to bring in their children.

“I’d be a fool to say that none of them have a case of credible fear,” Homan said. “They’re really escaping danger. But I can tell you….many of them are taking advantage of a low threshold.”

The ACLU argues that the separation of parents and children without a hearing is unconstitutional, depriving them of due process. The American Academy of Pediatrics denounced such separations because of possible long-lasting emotional and physical stress on the children, the suit says. “Each time S.S. is able to speak with her mother on the phone, she is crying,” the ACLU lawyers wrote. “Every day that S.S. is separated from her mother causes her great emotional and psychological harm and could potentially lead to permanent emotional trauma.”

The suit says the mother, because she passed the credible fear interview, should be eligible for parole while the asylum case is underway. But ICE’s San Diego field office has a policy requiring a directive from the agency to do so.

Lee Gelernt, deputy director of the ACLU’s Immigrant’s Rights Project, said this suit probably is the first of many to stop the separation of immigrant parents and children: “We’re not going to stop with just this action.”


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Federal judge considers $1M in fines for prison medical provider’s ‘intractable failures’

Health Law

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In late December, federal Magistrate Judge David Duncan waved an iPad in front of his Phoenix courtroom, enraged. He had just read a local news article suggesting that the Arizona Department of Corrections and its for-profit medical provider Corizon Health were gaming a system put in place to ensure adequate health care for the state’s prisoners. “There is no other way to read it,” he said. “It’s just a game to beat the judge and his monitoring program.”

Duncan has been overseeing a court case aimed at improving medical and mental health care in Arizona prisons. Parsons v. Ryan, which began in 2012, is one of several lawsuits across the country in which Corizon is accused of providing care so shoddy that it amounts to cruel and unusual punishment: delayed or denied treatment, too few doctors and nurses, referrals and medication refills that fall through the cracks.

Corizon disputes these claims, and in the Arizona case, the state arrived at an agreement with the prisoners that explicitly says that government officials “deny all the allegations.” In that agreement, struck in 2014, the state — and, by extension, Corizon — commits to meeting 103 standards governing everything from how quickly prescriptions are filled to how often those with mental illness see a counselor. Part of the agreement was that the state would measure how well it was meeting the standards and report the results back to the court.

For the first few years, according to the state’s own reports, it did not go well. Among other problems, the state was not providing urgent medication or specialty care quickly enough and prison doctors weren’t reviewing discharge orders for sick prisoners returning from the hospital. “You fundamentally have an obligation to provide these services to these inmates,” Duncan said at a 2016 hearing. “You failed to do it.” At one point the judge called the reports “chilling.”

Under the terms of the Arizona lawsuit, Corizon must ensure that patients who are referred to specialists see them within 30 days. But the story, by NPR station KJZZ, included an account by a physician who said Corizon asked her to cancel referrals if they weren’t completed in that time frame to avoid fines from the court. “After 30 days we get nailed for 1,000 bucks a day until they are seen,” read an email from a Corizon supervisor to the physician.

Martha Harbin, a spokesperson for Corizon, told The Marshall Project that Corizon would disprove all of the claims made by KJZZ at an upcoming court hearing. The supervisor “acted appropriately,” Harbin said. “The email was taken out of context and its meaning distorted by Dr. Watson and KJZZ.” Officials at the Arizona Department of Corrections did not respond to several emails with detailed lists of questions.

Harbin said the company is failing to meet only a small fraction of the standards under the lawsuit and that those failures result from how difficult it is to hire staff in Arizona. In an email, she detailed the company’s extensive efforts to recruit and train staff. “If staffing penalties were merely the cost of doing business, we certainly wouldn’t be funding this level of HR activity,” she said.

Corizon, based in Brentwood, Tennessee, is one of the nation’s largest for-profit prison healthcare providers, with contracts in 30 local jails and eight state corrections systems, according to Harbin.

Allegations of mismanagement and poor patient care have recently caused Corizon to lose some high-profile and lucrative contracts. The company has been the target of thousands of lawsuits — including other large-scale class action suits ongoing in Idaho and Alabama.

Any prison or prison-based provider is inevitably going to be a target for legal action, in part because the courts are often prisoners’ only means of redress for grievances large and small. What’s striking about the recent cases, however, is their similarities.

The suits describe a multi-layered bureaucracy in which even routine medical referrals require approval from middle management; a crisis-level shortage of nurses, doctors, psychiatrists, and other medical staff; and serious but treatable illnesses that went untreated and turned deadly. The Arizona claim described a 59-year-old inmate who died after nurses “repeatedly ignored his desperate pleas for help…even after open weeping lesions on [his body] were swarmed by flies.” A handwritten “notice of impending death” was filed by an inmate whose cancer went untreated. “Now because of there delay, I may be luckey to be alive for 30 days,” he wrote in August. He died in September.

Yet many experts say that the quality of a private contractor’s care comes down to how closely they’re watched. Kansas and Missouri, which both contract with Corizon, have teams monitoring the company’s work. Kansas’s is based at the local university hospital, according to the Kansas City Star; Missouri’s has a nine-person team based at the Department of Corrections, according to a spokesperson there. Kansas’s contract includes financial penalties if Corizon fails to meet certain standards; Missouri’s does not.

“I’ve seen private providers that have done a very good job. That’s because somebody is keeping a watch on them, and their contracts are well run,” says Steve J. Martin, a corrections expert who has served as a court-appointed monitor in several lawsuits.

In Arizona, the Department of Corrections has 33 employees in its “Health Services Contract Monitoring Bureau” tasked with keeping an eye on Corizon, and the contract includes financial penalties. The company has paid upwards of $3 million in fines for not having enough doctors and nurses on staff, according to the testimony of Charles Pratt, who oversees the Corizon contract for the state. But with a contract worth more than $150 million a year, even Judge Duncan was skeptical that these fines change the company’s calculus.

“Is it possible that they have made the economic decision that they are better off paying the fine than filling these positions?” he asked.

“It is,” Pratt replied.

In Idaho, where a class action lawsuit similar to the Parsons suit is ongoing, Corizon has been fined $178,000 since 2014 for not having enough staff and other problems, according to state officials. The contract there is worth more than $43 million a year.

“The private provider, their attorneys, are superior in their knowledge of contracts,” said Martin, who is currently serving as a court-appointed monitor on Rikers Island. “More often than not the agency is at a disadvantage. They’re starting 50 yards behind.”

Now Corizon faces $1 million or more in additional fines from the Arizona court as the judge considers holding them in contempt for their “pervasive and intractable failures” to meet the terms of the settlement. He could issue his ruling at a hearing on Tuesday.

Settlements, like contracts, need close, ongoing supervision by a neutral party to function effectively, say Martin and other corrections experts. In Idaho, the judge appointed an independent monitor, known as a special master, to evaluate how well the state was providing health and mental health care. Yet he was duped when the state “attempted to paper over and mislead the special master about the inadequacies of its mental health care system,” the judge later found.

The Arizona settlement has no special master. “In the settlement negotiations we pressed hard for an independent monitor, but the state was adamant that it would never agree to such a thing,” says the ACLU’s David Fathi, one of the attorneys representing the prisoners.

The agreement allows the state to monitor itself, which was at issue in the December hearing when the judge was so angry. “I had always been a little bit…concerned about the fact that the fox was guarding the hen house,” Judge Duncan said, noting that he may now appoint an independent auditor.

This article was originally published by The Marshall Project, a nonprofit news organization covering the U.S. criminal justice system. Sign up for their newsletter, or follow The Marshall Project on Facebook or Twitter.


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Jeff Sessions says judges must have ‘read the New York Times’ before decision on gay workers

Attorney General

Attorney General Jeff Sessions/Shutterstock.com.

Attorney General Jeff Sessions on Tuesday criticized a federal appeals court decision protecting gay workers and blasted federal judges who are issuing nationwide injunctions that are blocking Trump administration policies.

Sessions said an en banc federal appeals court reversed the court’s own precedent when it ruled Monday that Title VII of the Civil Rights Act of 1964 protects workers from discrimination based on sexual orientation, the National Law Journal reports.

The Justice Department had told the New York-based 2nd U.S. Circuit Court of Appeals that Title VII doesn’t protect workers from sexual-orientation discrimination.

“We believe we’re on the right principle there,” Sessions said Tuesday in remarks to the National Association of Attorneys General. “And I guess maybe the judges woke up that morning, read the New York Times or something, and decided their previous ruling was wrong.”

Sessions also said that a court decision blocking President Donald Trump’s immigration policies threaten the role of the judiciary as a co-equal branch of government, USA Today reports.

The decisions smack of “judicial superiority,” Sessions said.

Sessions also said top lawyers in the Justice Department believe that bump stocks can be banned through the regulatory process, Reuters reports. He noted that President Trump had asked the Justice Department to draft regulations that would ban the devices, which are used to accelerate gunfire on semi-automatic weapons.

“We will have an announcement on that soon,” he said.

A video of Sessions’ appearance is here. His prepared remarks concerned violent crime.


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Immigration law doesn’t give detained immigrants the right to periodic bond hearings, SCOTUS rules

U.S. Supreme Court

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The U.S. Supreme Court ruled Tuesday that federal laws do not give detained immigrants the right to twice-a-year bond hearings.

The Supreme Court decision overturned a ruling by the San Francisco-based 9th U.S. Circuit Court of Appeals.

“The meaning of the relevant statutory provisions is clear—and clearly contrary to the decision of the Court of Appeals,” Justice Samuel A. Alito Jr. wrote in a section of his majority opinion that was joined by four justices.

According to Alito, nothing in the statute “even remotely supports” the 9th Circuit’s procedural requirements: that bond hearings must be held every six months, during which the government must show by clear and convincing evidence that continued detention is necessary.

The 9th Circuit had read the requirements into the federal laws to avoid deciding constitutional issues, a procedure known as the canon of constitutional avoidance. “But a court relying on that canon still must interpret the statute, not rewrite it,” Alito said.

The Supreme Court remanded the case for a 9th Circuit decision on the immigrants’ constitutional claims and on whether the immigrants could pursue the case as a class action.

The ABA had argued in an amicus brief that people being held in immigration detention should get a bond hearing within a set time period to determine whether they pose a danger or a flight risk. The ABA said the due process clause requires a bright-line rule fixing the time period for such a hearing, and the Supreme Court should uphold the six-month deadline adopted by the 9th Circuit.

Alito’s majority opinion was joined in full by Chief Justice John G. Roberts Jr. and Justice Anthony M. Kennedy. Justices Clarence Thomas and Neil M. Gorsuch concurred in the judgment.

Thomas argued in a partial concurrence that no court has jurisdiction in the case. Courts in immigration cases only have jurisdiction to review a final removal order or a petition raising other circumstances not present in the case, he said. Because a court majority agrees there is jurisdiction, Thomas said, he agrees with the resolution on the merits. Gorsuch joined Thomas’ opinion, except for a footnote.

The case is Jennings v. Rodriguez. A preliminary summary from SCOTUSblog quickly reported on the holding. Bloomberg and Reuters also had early coverage.


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