by Christopher Zoukis

The silence is deafening. Over a week in mid-May, Prison Legal News tried to contact public information officers at seven federal prisons seeking an answer to a straightforward question: What are you doing to protect prisoners at your facility from COVID-19?

The answer?

As of press time, not a single public information officer responded. This includes public information officers from FCI Elkton, FCI Terminal Island, FCI Butner Medium I, FMC Fort Worth, FCI Oakdale I, FCI Milan, and USP Lompoc. These facilities may sound familiar because they were the top seven federal prisons in terms of prisoner deaths due to COVID-19.

To be fair, PLN left voicemails with only three public information officers. No one picked up the phone at the other four. That’s right: At institutions with inmate populations ranging from 660 to 1,955, no one bothered to answer the phone.

Families Fear for their Loved Ones

“It’s as if they are just locking them in their cells and making them fend for themselves,” said the mother of a federal prisoner who asked not to be identified due to potential retaliation against her son. “I’m just so scared. I don’t want him to die.”

The same sentiments are echoed by countless others who view the federal Bureau of Prisons’ (BOP) response as less than satisfactory.

“The BOP has shown their true colors in care and concern of the incarcerated,” said the mother of another federal prisoner housed at FCI Seagoville. “There is no soap. Up until last week, there were no masks.” She continued, “The warden has answered no emails or mail regarding compassionate release and is still earning his paycheck.”

Even the American Federation of Government Employees, the union representing federal workers, has entered the fray. In a May 5, 2020, letter to Michael Carvajal, director of the BOP, Everett Kelley, the union’s president, stated: “The Bureau of Prisons continues to transfer prisoners between prisons, most notably from institutions that have had outbreaks of COVID-19 to ones that have not had any confirmed cases of the virus in either staff or prisoners…The Council of Prison Locals has repeatedly raised concerns with wardens about proper Personal Protective Equipment (PPE) for correctional officers, the lack of adequate testing and screening, and the introduction of COVID-19 into previously unaffected facilities and geographic areas as a result of these continuing inmate transfers.”

Frontline prison guards have rebuffed the BOP’s response as well. On May 11, 2020, the AFGE released a photo of prison guards in West Virginia protesting. Signs read, “We are not lab rats” and “STOP the Bureau of Prisons spreading the virus!” Yet faced with this unified chorus of calls for reform, the phones continue to go unanswered and the death toll continues to mount.

The Current State of COVID-19
in Federal Prison

As of May 16, 2020, the BOP reported that 2,285 federal prisoners and 283 BOP staff had confirmed positives for COVID-19. These positive cases span 54 federal prisons and 22 halfway houses. As of that date, 56 federal prisoners have died from the virus. The BOP has also reported 1,950 prisoners, and 287 staff who had tested positive for the virus have recovered.

These numbers might be deceptive. Over a 12-hour period on May 16, 2020, the number of prisoners infected actually dropped from 2,285 to 2,280, but with no corresponding reduction in the number of prisoners who have recovered (this number remained at 1,950 prisoners).

Likewise, over these 12 hours the number of federal prisons affected stayed constant at 54 but the number of halfway houses dropped from 22 to 18.

The best guess is that the BOP is dropping the number of prisoners and institutions it counts when prisoners are transferred to hospitals or other facilities that they don’t directly manage or supervise. Such a data reporting technique would inherently underreport the true nature and scope of COVID-19 infection rates.

Delving further into this data, an analysis reveals that prisoners have tested positive in at least 60 federal prisons and 26 halfway houses. For example, staff have also tested positive at Central Office, the Designation and Sentence Computation Center in Grand Prairie, Texas, and the Southeast Regional Office.

Another problem is that COVID-19 testing in the BOP is far from comprehensive. Anecdotally, it appears that when one prisoner presents symptoms, prison staff test other prisoners who live in close proximity to the asymptomatic inmate. This results in staggering increases in the number of infections reported.

But on April 30, The Wall Street Journal reported that only 2 percent of prisoners nationwide had been tested. The same day, The Hill reported that about 2,700 prisoners had been tested, with 71 percent of those testing positive for COVID-19.

“Really, this pandemic is challenging us to rethink almost everything we do, while keeping in mind the security requirements of correctional facilities,” said Jeffrey Allen, BOP medical director. Allen also revealed that approximately 130 federal prisoners are held in hospitals due to COVID-19 infections on any given day.

Equally as troublesome is the geographic scope of the crisis.

Survey of COVID-19 Impact on Federal Prisons Nationwide

Here is a sampling to show the scope and geographic diversity of the crisis. As of May 19, official statistics show:

• FCI Lompoc (California)

881 inmate positives

14 staff positives

43 prisoners recovered

3 staff recovered

• FMC Fort Worth (Texas)

304 inmate positives

6 staff positives

331 prisoners recovered

• FCI Forrest City Low (Arkansas)

252 inmate positives

1 staff positive

48 prisoners recovered

2 staff recovered

• FMC Lexington (Kentucky)

3 inmate deaths

198 inmate positives

6 staff positives

28 prisoners recovered

• FCI Terminal Island (California)

8 inmate deaths

121 inmate positives

15 staff positives

571 prisoners recovered

• FCI Elkton (Ohio)

9 inmate deaths

115 inmate positives

12 staff positives

60 prisoners recovered

40 staff recovered

• USP Lompoc (California)

2 inmate deaths

57 inmate positives

16 staff positives

102 prisoners recovered

6 staff recovered

• FCI Butner Medium I (North Carolina)

8 inmate deaths

56 inmate positives

14 staff positives

168 prisoners recovered

12 staff recovered

Many other federal prisons have also reported positives and fatalities. For example: FCI Oakdale I (LA) had reported seven prisoner deaths; FCI Milan (MI), three prisoner deaths, and Behavioral Systems Southwest, Inc., a halfway house in Phoenix, Arizona, two prisoner deaths. Also, FMC Carswell (TX), FCI Danbury (CT), FMC Devens (MA), GEO Care, Inc. (halfway house in NY), FCI Oakdale II (LA), FTC Oklahoma City (OK), and USP Yazoo City (MS) had all reported one inmate death.

Not included in the above lists: MCC New York had reported 22 staff positives (with 23 additional staff recovering); FDC Miami (FL), 16 staff positives (with two additional staff recovering), and MCC Chicago (IL), 14 staff positives (with 16 additional staff recovering).

The total number of infected prisoners is certainly higher, as there is limited testing and, in some cases, widespread testing only occurring when a prisoner presents as seriously ill. And as previously discussed, the data is misleading in itself, underreporting the pandemic in federal prisons.

“When I hear numbers like that, my thoughts are there is massive under-testing, there are probably thousands of additional people who are infected that they may not have captured yet, and it really feels like a public health crisis in the making,” said Ashish Jha, director of the Harvard Global Health Institute.

What Federal Prisons Are Doing
to Mitigate the Crisis

While the Bureau of Prisons has repeatedly failed to respond to any inquiries from PLN, news reports, discussions with federal prisoners and their families, and BOP documents show how the Bureau is attempting to manage the crisis.

According to its “Correcting Myths and Misinformation About BOP and COVID-19” fact sheet, BOP medical staff are “conducting rounds and checking inmate temperatures at least once a day.” At institutions where prisoners are in quarantine, “Health Services staff are conducting rounds and temperature checks twice a day.”

Another part of the FAQ addresses prisoners in dormitory settings. The fact sheet says a common myth is that, “Inmates say correctional officers are ordering them to stay six feet apart, but most of them are living in dormitory-style settings with 1,000 or more men. A handful of sinks, showers and toilets are shared by all.” In response, the fact sheet states, “Social distancing is difficult in certain correctional settings but to counter this limitation, BOP has issued cloth face masks to all inmates and common areas are sanitized multiple times a day. Their cells can be cleaned at least 1x a day.”

This is typical of how the BOP responds to legitimate concerns with political statements. Instead of acknowledging that social distancing is impossible in a prison setting, it suggests that it is merely “difficult” and that prisoners may clean their cells.

The Centers for Disease Control and Prevention (CDC), in their Interim Guidance on Management of Coronavirus Disease 2019 (COVID-19) in Correctional and Detention Facilities, has addressed this issue by recommending bunks be arranged “so that individuals sleep head to foot to increase the distance between them.”

The real crisis comes into focus when considering that federal prisons are, on average, 12 percent to 19 percent overcrowded, according to a 2020 Department of Justice report, and that Health Services departments are 17 percent understaffed, according to a 2016 Office of the Inspector General report.

With limited health-care staff, drastic overcrowding, and an untenable lack of ability to socially distance, federal prisons are a COVID-19 powder keg waiting to explode. The aspect, which should have everyone worried, is that it may have already exploded; we may just not know it, and federal prison officials might not even know themselves.

Drastically Reduce Federal
Prison Populations

The only answer to mitigating this crisis in federal prisons is, in the words of The New York Times Editorial Board, “in the very short term, while inmates and staff members are dying, prisons need to release people immediately.” Sadly, this just hasn’t been the case.

While Attorney General William Barr released memorandums on March 26 and April 3, 2020, calling for certain low-level, low-risk prisoners to be placed on home detention, this hasn’t turned into a reality.

On May 17, 2020, the BOP reported the total release of 2,785 prisoners to home confinement, categorizing this as a 97.6 percent increase from March 26. However, it must be kept in mind that there are 138,954 prisoners in BOP custody, 16,742 prisoners in privately managed facilities, and 12,107 federal prisoners in other types of facilities. Of these, 5,495 are in home confinement, and 6,022 are in halfway houses. [Note: These numbers include prisoners already placed on home confinement and in halfway houses external of early releases due to COVID-19 concerns.]

What is equally as perplexing is the approach the Bureau of Prisons has taken to early releases in response to Attorney General Barr’s memorandums. These criteria include:

• Age and COVID-19 vulnerability

• Security level, with an emphasis on inmates at low- and minimum-security facilities

• Minimum risk score using the PATTERN risk assessment tool

• Verifiable reentry plan which would reduce COVID-19 risk.

Additionally, certain groups of prisoners are to be presumed not appropriate:

• Inmates with a history of violent or gang related activity in prison.

• Inmates who have received an incident report within the past 12 months (not total preclusion, but given less priority).

• Inmates convicted of certain offenses, such as sex offenses, are presumed to be ineligible.

Sources report that the Bureau of Prisons’ Central Office promulgated a list of prisoners who fit Barr’s memorandums. This list was then transmitted to local institutions for review. Unit teams then met with these prisoners to verify release plans and PATTERN scoring. Finally, if the prisoner checked all the right boxes, the warden would review, sign off, and transmit the home detention plan to the applicable Regional Reentry Manager (RRM) for the final phase of the process.

In theory, this process made sense. But in reality it didn’t.

While the above process generally appears to have played out as described, many prisoners on the Central Office list were subsequently excluded due to a review of PATTERN scoring. They were deemed too high a risk. In some cases, even after the warden signed off, the RRM overruled the warden’s decision.

More damming, according to The Intercept, there were even cases where prisoners were told they were going home but informed their releases had been rescinded when their families were driving to pick them up. It’s been a perfect storm of ineptitude, callousness, and abject disregard for human life and safety. Meanwhile, predictably, the death toll keeps rising.

The Time for Action is Now

As the last few months have shown us, the BOP cannot manage the threat COVID-19 presents to prisoners and staff. While hiding the ball is nothing new for jail and prison officials, the idea that prison officials would misreport data is abhorrent. This is not a political matter, it’s a matter of life and death.

The only answer is to release prisoners to mitigate the loss of life associated with COVID-19. This doesn’t mean the release of only minimum- and low-security prisoners who are elderly or who have preexisting conditions, which would place them at a higher risk for contraction. This means everyone who the BOP can’t safely manage and protect.

Incarceration’s primary objective is incapacitation, to physically stop offenders from committing crimes. It should only be used when absolutely necessary. Instead, the American criminal justice system views incarceration as the primary mechanism for the punishment of crime. This is misguided at best and serves to destroy lives and communities.

Instead of focusing on who should be released, we should focus on who cannot safely be released. It’s a short list.

Simply because someone has been convicted of a violent or sexual offense, and irrespective of what security level they are housed within, we must view them with an eye toward their rehabilitation, reintegration, and the potential impact of an early release upon public safety. What is missing from the current equation is that people don’t commit crimes when they are at their best. They commit crimes when they are at their worst. And judging a person based on a crime they committed five, 10 or even 20 years ago is folly. Likewise, determining who lives and who dies based on the security level they are housed in fails for the same ethical and moral reasons.

As the death toll continues to rise, the only answer is to release as many federal prisoners as possible — and to do so as quickly as possible. To refuse is to acknowledge the risk to life and welcome it, as to stand on the beach and proffer to the hurricane it should stop, thinking it will listen. 

Sources: NYTimes.com, BOP.gov, APNews.com, afge.org, TheHill.com, TheIntercept.com, Slate.com, CDC.gov, WSJ.com, USAToday.com

About the Author: Christopher Zoukis, MBA, is the author of the Federal Prison Handbook, Directory of Federal Prisons, and Prison Education Guide. He is also a law student at the University of California, Davis, School of Law, where he is on the board of Students Against Mass Incarceration. He can be found online at www.prisonerresource.com.

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