The Sentencing Resource Counsel has prepared a detailed fact sheet about the ongoing COVID-19 crisis within the Federal Bureau of Prisons. The up-to-date information and resources linked will be particularly helpful in our compassionate release efforts.
The Senate Judiciary Committee is holding a hearing today, June 2, to examine best practices for incarceration and detention in the time of COVID-19.
Particularly noteworthy is the Joint Testimony of two BOP officials: Michael D. Carvajal, Director of BOP, and Dr. Jeffery Allen, the BOP’s Medical Director. Much of the testimony addresses the criticism of BOP’s pandemic response, which Carvajal and Allen claim has “been based on misinformation” about how BOP is actually handling things.
Take a close look at the last section, addressing how the BOP is handling home confinement:
“As the pandemic grew more widespread, the Bureau began aggressively screening the inmate population for inmates who were appropriate for transfer to RRC or Home Confinement for service of the remainder of their sentences. On March 26, 2020 and April 3, 2020, Attorney General Barr issued memoranda to the Bureau directing us to increase the use of Home Confinement, particularly at institutions that were markedly affected by COVID-19, for vulnerable inmates. The CARES Act, signed by President Trump on March 27, 2020, further expanded our ability to place inmates on Home Confinement by lifting the statutory limitations contained in Title 18 U.S.C. § 3624(c)(2) during the course of the pandemic. I am pleased to note that we currently have 6,120 inmates in RRC and 6,398 on Home Confinement. This is an 124% increase in HC from March 26, 2020. There are an additional 985 who are scheduled to transfer to Home Confinement in the coming weeks. While we continue to make robust strides in these placements to reduce risk of spread to the inmate population and staff, public health and safety must remain our highest priority. The Attorney General has issued guidance as to which inmates should be considered for home confinement. Staff are conducting individualized assessments to ensure inmates are appropriate for community placement both from a public safety perspective and given their own specific needs and circumstances. Additionally, we must ensure inmates who release to Home Confinement have a viable residence in which to reside.
It should go without saying that while we are dedicated to the protection of our inmates’ health and safety, we also have to consider—as the Attorney General’s guidance emphasized—that inmates who presented a risk of public safety because of their criminal acts or other factors cannot be released. Neither can we release inmates who would be worse off outside Bureau facilities than inside, such as those whose medical conditions could not be adequately cared for by health systems that are themselves overwhelmed by the response to COVID infections in the general community. Nor can we release inmates who do not have safe housing for themselves or housing that is not subject to appropriate safeguards for home confinement, which is still, after all, a form of incarceration for persons convicted of crimes whereby such persons are still serving a federal sentence.”
As we make release arguments in light of COVID-19, consider using data visualizations in your filings to advance the cause.
But there is good reason to believe the numbers reported by the BOP understate the actual number of tested-positive cases. When using BOP data, make sure to keep in mind that just because a facility isn’t listed on the BOP website does not mean there are no presumptive positive or clinically confirmed cases in that facility.
The Prison Policy Initiative is aggregating information about the criminal justice system and COVID-19.
Other sources of COVID-19 data and statistics can be found here. This is a website maintained by Johns Hopkins University Center for Systems Science and Engineering; they are tracking the COVID-19 spread in real time on an interactive dashboard with data available for download.
The Centers for Disease Control and Prevention also provides daily updates on the cumulative numbers of COVID-19 cases in the United States.
Data about COVID-19 cases in Colorado is updated daily by the Department of Health.
The number of positive-COVID-19 cases in the BOP continues to rise.
As of this morning the BOP reports 138 inmates and 59 staff have tested positive for the virus. The BOP updates this data every afternoon.
On March 26, 2020, Attorney General Barr issued a memorandum to the Director of BOP, outlining a new policy by the United States Department of Justice to deal with confined inmates who are most vulnerable to the COVID-19 virus. Barr directed BOP to use home confinement “where appropriate, to protect the health and safety of BOP personnel and the people in our custody.”
Despite that step, barriers remained to release.
On April 1, 2020, the Federal Public & Community Defenders Legislative Committee wrote a letter to AG Barr and urged him to exercise his authority under the CARES Act to allow the BOP to transfer more people to the “relative safety of home confinement.”
On April 3, 2020 (after 7 deaths in BOP custody and uncontained spread in multiple facilities), AG Barr made a CARES-Act finding that “emergency conditions are materially affecting the functioning of the Bureau of Prisons.” He told the BOP to review all inmates with COVID-19 risk factors, starting with FCI Oakdale, FCI Danbury, and FCI Oakton (and “similarly situated” facilities), and to transfer “suitable candidates for home confinement” to home confinement.
The memo directs the BOP to “be guided by the factors in [Barr’s] March 26 Memorandum,” which drastically limits the number of people prioritized for home confinement. But it also says all inmates with “a suitable confinement plan will generally be appropriate candidates for home confinement rather than continued detention at institutions in which COVID-19 is materially affecting their operations.”
On April 5, 2020, the BOP issued a press release responding to AG Barr’s April 3 memorandum. BOP says it is reviewing all inmates to determine which ones meet the criteria established by the Attorney General. While inmates do not need to apply to be considered for home confinement, any inmate who believes they are eligible may request to be referred to Home Confinement and provide a release plan to their Case Manager.
If you have a client who might be a candidate for home confinement, don’t wait for the BOP to identify them. Now is the time to figure out a release plan and bring eligibility to the attention of the Case Manager.
The BOP is using the eligibility criteria established by AG Barr as a benchmark for home-confinement determinations:
(1) The age and vulnerability of the inmate to COVID-19;
(2) The security level of the facility;
(3) The inmate’s conduct in prison;
(4) The inmate’s score under PATTERN;
(5) The inmate’s release plan; and
(6) The inmate’s crime of conviction and assessment of danger posed to the community.
But remember that list of criteria is not exhaustive; the BOP must consider the “totality of the circumstances.”
Inmates deemed suitable for home confinement must be immediately processed for transfer out of BOP, but there is still a required 14-day quarantine before the transfer can happen. Note that AG Barr (in the April 3 memorandum) gave the BOP discretion “on a case-by-case” basis to allow an inmate to quarantine outside the BOP facility “in the residence to which the inmate is being transferred.”
On March 11, 2020, the World Health Organization officially classified COVID-19 as a pandemic. COVID-19 is impacting jails and prisons all over the United States. Check out this recent collection of links on the subject from The Sentencing Law and Policy blog. Notably, the BOP is now operating under modified procedures to prevent the spread of the virus. But, commentators have observed that responding to COVID-19 in jails and prisons will be extraordinarily challenging.
Given these rapidly-changing developments, and the direct impact of this health crisis on correctional systems, here are Some Release Arguments in the Time of COVID19.
Also, some courts have found the COVID-19 pandemic to be a new circumstance warranting reopening of detention and/or directly relevant to determining what bail conditions are necessary to reasonably ensure the defendant’s appearance and to protect the community. Take a look at these orders from the Southern District of New York, the District of Columbia, the Central District of California, and the Alaska Court of Appeals.
And consider these cases, finding the public health crisis relevant to release decisions in a wide range of contexts, including home confinement, self surrender, extradition, etc.:
- Xochihua-James v. Barr, No. 18-71460 (9th Cir. Mar. 23, 2020) (unpublished) (sua sponte releasing detainee from immigration detention “[I]n light of the rapidly escalating public health crisis”)
- United States v. Jaffee, No. 19-cr-88 (D.D.C. Mar. 26, 2020) (releasing defendant with criminal history in gun & drug case, citing “palpable” risk of spread in jail and “real” risk of “overburdening the jail’s healthcare resources”; “the Court is . . . convinced that incarcerating the defendant while the current COVID-19 crisis continues to expand poses a greater risk to community safety than posed by Defendant’s release to home confinement”)
- United States v Garlock, No. 18-CR-00418-VC-1, 2020 WL 1439980, at *1 (N.D. Cal. Mar. 25, 2020) (citing “chaos” inside federal prisons in sua sponte extending time to self-surrender: “[b]y now it almost goes without saying that we should not be adding to the prison population during the COVID-19 pandemic if it can be avoided”)
- United States v. Perez, No. 19 CR. 297 (PAE), 2020 WL 1329225, at *1 (S.D.N.Y. Mar. 19, 2020) (releasing defendant due to the “heightened risk of dangerous complications should he contract COVID-19”)
- United States v. Stephens, 2020 WL 1295155, __F. Supp. 3d__ (S.D.N.Y. Mar. 19, 2020) (releasing defendant in light of “the unprecedented and extraordinarily dangerous nature of the COVID-19 pandemic”)
- In re Manrigue, 2020 WL 1307109 (N.D. Cal. Mar. 19, 2020) (“The risk that this vulnerable person will contract COVID-19 while in jail is a special circumstance that warrants bail.”)
- In re Request to Commute or Suspend County Jail Sentences, Docket No. 084230 (N.J. Mar. 22, 2020) (releasing large class of defendants serving time in county jail “in light of the Public Health Emergency” caused by COVID-19)
- United States v. Matthaei, No. 1:19-CV-00243-BLW, 2020 WL 1443227, at *1 (D. Idaho Mar. 16, 2020) (extending self-surrender date by 90 days in light of COVID-19)
- United States v. Barkman, 2020 U.S. Dist. LEXIS 45628 (D. Nev. Mar. 17, 2020) (suspending intermittent confinement because “[t]here is a pandemic that poses a direct risk if Mr. Barkman . . . is admitted to the inmate population of the Wahoe County Detention Facility”)
- United States v. Copeland, No. 2:05-cr-135-DCN (D.S.C. Mar. 24, 2020) (granting compassionate release to defendant in part due to “Congress’s desire for courts to release individuals the age defendant is, with the ailments that defendant has during this current pandemic”).
Finally, here is a brief filed in the Eastern District of California with a detailed statement of facts about COVID-19.
Don’t forget to check for updates on the Defender Services Office resource page – we linked to it here: Resource: Defender Services Office Creates Website On COVID-19
The Bureau of Prisons initiated a review of its management of female inmates in response to concerns raised by Congress and public interest groups over possible deficiencies in how BOP treated female inmates. The review was conducted by the Department of Justice’s Office of Inspector General (OIG).
The sixty-page report released last month made these findings:
- BOP institutions are not complying with policies for female inmates, specifically the Female Offender Manual, which was issued in November 2016 but has not yet been fully implemented.
- BOP has inadequate staffing at the office that oversees management of female inmates.
- BOP is failing to adequately implement programming for female inmates specifically in areas of trauma and pregnancy.
- The report stated that 90% of the female prison population has experienced physical or emotional trauma. While BOP has trauma programs, the wait is too long.
- Only 37% of pregnant inmates received the pregnancy programming even though spots were available. OIG attributed the problem largely to the lack of social workers at BOP institutions as social workers must refer inmates to the programs.
- BOP is not providing adequate feminine hygiene products to female inmates.
The report also contained some interesting facts:
- Most female and male inmates are in BOP for drug crimes but female inmates are less likely to be convicted of weapons, sex or other violent offenses.
- The median sentence for female inmates is 5 years while it is ten for men.
- Nearly all female inmates are classified as low or minimum security.
- There is no medium security classification for female inmates.
BOP also highlighted four programs available to female inmates:
(1) The Resolve program for female inmates with a history of trauma-related mental illness. It lasts 40 weeks.
(2) The Female Integrated Treatment program (FIT) for trauma, substance abuse and mental health. This is only available at the low security facility in Danbury.
(3) Mothers and Infants Nurturing Together Program (MINT) in which female inmates may stay with their babies for up to 6 months after birth.
(4) The Residential Parenting Program in Gig Harbor, where female inmates may stay with their babies for up to 30 months after birth.