The Sentencing Resource Counsel for the Federal Defenders has released an updated fact sheet about the impact of COVID-19 in the federal prison system. It is a fascinating and disturbing account of the death toll within BOP and the lack of leadership and oversight that has contributed to a deadly crisis for our clients in federal custody. The fact sheet includes links to other resources on point and contains particularly useful data for those fighting for compassionate or pretrial release. Find it here:
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
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 District of Colorado continues to respond to the ongoing impact of COVID-19 on the functioning of federal courts.
On April 6, 2020, Chief Judge Philip A. Brimmer entered a General Order, pursuant to the Coronavirus Aid, Relief, and Economic Security Act (“CARES Act”), authorizing judges in the district, with the consent of the defendant after consultation with counsel, to use video teleconferencing, or telephone conferencing if video teleconferencing is not reasonably available, for a number of criminal proceedings. The specific hearings covered are listed in the General Order, and include felony pleas under Rule 11 and felony sentencings under Rule 32 “if judges in individual cases find, for specific reasons, that felony pleas or sentencings in those cases cannot be further delayed without serious harm to the interests of justice[.]”
This General Order will remain in place for 90 days “unless terminated earlier.”
A previously-entered General Order describing COVID-19-related changes to court operations (in place through May 1, 2020) can be found here.
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.”
The Administrative Office of the United States Courts, Defender Services Office Training Division has announced that a newly recorded presentation is currently available for viewing on www.fd.org.
This pre-recorded session, COVID-19 & Pretrial Release, is presented by Miles Pope, Assistant Federal Defender, Federal Defender Services of Idaho.
This presentation reviews core principles of constructing effective bail strategies to obtaining our clients’ release from custody during the novel coronavirus (COVID-19) pandemic. As this is a rapidly evolving area of law – and as we are constantly improving our arguments as courts issue rulings and we learn how to deal with the government’s responses to our arguments on protecting our clients’ health – viewers are encouraged to explore the resources regularly being posted on fd.org.
REGISTRATION, VIEWING VIDEO & MATERIALS
To view the presentation, you will need to register for the video. To register, you will need log in credentials for the password protected part of www.fd.org.
For panel attorneys, if you have already applied and been approved for log in credentials, you also have access to the password protected portions of www.fd.org.
For panel attorneys who have not already applied for log in credentials, you will need to do so before you can view the video. In order to apply for credentials, fill out the online application available at this link: http://cjaresources.fd.org/pl_cjaverify.aspx.
Once your application has been approved you will receive an email from “Defender Services Office” with instructions on how to set your password. Once you have taken those steps, you will be able to log in and view the video. It may take several days for you to receive the email.
LINKS TO VIDEO AND MATERIALS
Please use this password-protected link to view the video: https://www.fd.org/program-materials/tips-getting-your-client-released-detention-during-pandemic-covid-19-pretrial.
Materials associated with this presentation and other COVID-19 issues, can be found by clicking here.
The ABA is hosting a Zoom webinar tomorrow, April 1, 2020 at 4 pm Eastern / 2 pm Mountain time exploring efforts to seek expanded release, in response to COVID-19, for those detained pretrial. The webinar is sponsored by the ABA Standing Committee on Legal Aid and Indigent Defendants, the ABA Section of Civil Rights and Social Justice, and the ABA Criminal Justice Section.
You can register for it here.