We post news and comment on federal criminal justice issues, focused primarily on trial and post-conviction matters, legislative initiatives, and sentencing issues.

SO WHO’S ‘AT RISK’?

Attorney General Barr has specifically directed the BOP to screen inmates who “have COVID-19 risk factors, as established by the CDC.” Exactly what are those factors?

The CDC has identified people “at high-risk for severe illness from COVID-19” as including

• People 65 years and older

• People with chronic lung disease or moderate to severe asthma

• People with serious heart conditions

• People with immunocompromised conditions, including cancer treatment, bone marrow or organ transplantation, immune deficiencies, poorly controlled HIV or AIDS, and prolonged use of corticosteroids and other immune weakening medications.

• People who are severely obese (body mass index [BMI] of 40 or higher)

• People with diabetes

• People with chronic kidney disease and who are undergoing dialysis

• People with liver disease

Beyond that, the evidence is rapidly developing that factors not listed are having a great impact on coronavirus mortality. The CDC’s weekly mortality and morbidity report for April 3 reported a strong correlation between hypertension and COVID-19 hospitalization. And that’s not all: “Public health departments reported cases to CDC using a standardized case report form that captures information (yes, no, or unknown) on the following conditions and potential risk factors: chronic lung disease (inclusive of asthma, chronic obstructive pulmonary disease [COPD], and emphysema); diabetes mellitus; cardiovascular disease; chronic renal disease; chronic liver disease; immunocompromised condition; neurologic disorder, neurodevelopmental, or intellectual disability; pregnancy; current smoking status; former smoking status; or other chronic disease.”

Ironically, as of early March, hypertension was discounted as a risk factor for coronavirus. Understanding what could raise the risk of COVID-19 is changing as statistics are compiled.

For that matter, the 65+ age standard should not be considered to be a hard cut-off. Studies now show hospitalizations were much higher for ages 54 and higher, and disproportionately high among blacks. In fact, seven of the eight inmates who have died of COVID-19 were 53 or older, and half of them were under 65.

The risk to inmates comes from the implementation of authority granted to the BOP under The CARES Act and Attorney General Barr’s memo. The BOP says that “given the surge in positive cases at select sites and in response to the Attorney General’s directives, the BOP has begun immediately reviewing all inmates who have COVID-19 risk factors, as described by the CDC, starting with the inmates incarcerated at FCI Oakdale, FCI Danbury, FCI Elkton and similarly-situated facilities to determine which inmates are suitable for home confinement.” Reports indicate that BOP case managers – who are not trained medical personnel – are identifying the people who should be sent to home confinement.

As of yesterday, the count of BOP institutions with COVID-19 had climbed to 37. The BOP reported 283 inmates with COVID-19. The fine print, however, notes that the count includes only those who have been tested and found positive. This is troubling, inasmuch in a hearing in U.S. District Court for the Southern District of New York last week, “inmates’ counsel was alarmed by the revelation that at MDC Brooklyn, only two other inmates were tested after five staff members and one inmate tested positive, asserting that many inmates with symptoms weren’t being tested and that the lack of testing likely meant that many more people had the virus inside the Brooklyn prison.”

If you don’t test for it, you aren’t going to find it.

Centers for Disease Control and Prevention, Coronavirus Disease 2019 (COVID-19): People Who Need Extra Precautions, People Who Are At Higher Risk

Centers for Disease Control and Prevention, Preliminary Estimates of the Prevalence of Selected Underlying Health Conditions Among Patients with Coronavirus Disease 2019 — United States, February 12–March 28, 2020 (April 3, 2020)

Medpage, Hypertension, Obesity Common in U.S. COVID-19 Hospitalizations (April 8, 2020)

Law360.com, Brooklyn Prison Urged To Settle At-Risk Inmates’ Release Bid (Apr. 9)

– Thomas L. Root