Resources: Some new COVID-19-related materials to help you advance the cause

Congressional Letter to USMS. Every district is grappling in its own ways with the conditions of our clients in pretrial custody. Hopefully some answers will come today. Check out the letter from Senators Warren and Booker and Congressman Deutch to the United States Marshals Service calling out its lack of testing, lack of transparency and general lack of containment efforts. The letter states unequivocally that, “USMS is failing to prevent the further spread of COVID-19 in prisons and communities all across the U.S., and in fact is actively making matters worse.” The letter sets out detailed questions and requests a response by today’s date.

It also contains some clear facts (and citations) describing how dire the situation really is for our clients in custody: “The spread of COVID-19 in U.S. prisons and jails is out of control, with over 125,692 confirmed cases and at least 1,066 prisoner deaths to date. All 15 of the largest “clusters” of COVID-19 in the U.S. are correctional facilities, and in some facilities the overwhelming majority of the detained individuals have been infected with coronavirus.”

Report by The National Commission on COVID-19 and Criminal Justice. This newly released report contains a set of urgent, far-reaching recommendations that call on leaders in law enforcement, the courts, and corrections to expand their efforts to reduce harm caused by the coronavirus. In its first report, Recommendations for Response and Future Readiness, the independent, nonpartisan Commission said a lack of clear guidance and reliable data had led to a patchwork of responses among states and localities, creating wide variance in infection and mortality rates for their incarcerated populations, among other consequences. Led by former U.S. Attorneys General Loretta Lynch and Alberto Gonzales, the Commission urged justice system leaders to follow the facts, data, and science in their pandemic responses. Key recommendations include mandating mask wearing across all sectors of the system, conducting mass testing to detect outbreaks quickly, and reducing populations in correctional facilities to limit virus spread while remaining mindful of public safety concerns. https://counciloncj.foleon.com/covid19/report/welcome/

The executive summary is available here: https://counciloncj.foleon.com/covid19/report/executive-summary/

Interactive Dashboards about COVID-19 within BOP. The OIG released an Interactive Dashboards Relating to COVID-19 Within the Federal Bureau of Prisons. It’s more user friendly than the BOP website. https://oig.justice.gov/news/multimedia/video/message-inspector-general-interactive-dashboards-relating-covid-19-within

The dashboards are available here: https://www.arcgis.com/apps/MapSeries/index.html?appid=a3e98be1aab94eadaaeaa96ed176f418

Resource: The COVID-19 Crisis in Federal Detention | Fact Sheet

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.

News You Can Use: Recent developments in home confinement in the age of COVID-19

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.

TAKEAWAYS

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.”