COVID-19 Numbers Rise, BOP Scrambles – Update for April 13, 2020 | Legal Information Services Associates LLC

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THE WEEK IN COVID-19

A little over two weeks ago, Attorney General William Barr announced that “total of six inmates and four prison staffers have tested positive for COVID-19.” Last week, BOP admitted to 138 inmates and 59 staff sick (with eight fatalities). As of Sunday evening, April 12, the BOP’s updated numbers report 352 federal inmates and 189 federal prison staffers had tested positive.

Two more inmates have died. A 76-year old Oakdale prisoner, died of COVID-19 on Friday, and an 81-year old Butner I prisoner died on Saturday. The total now is ten.

The BOP is reporting that there are now 40 different federal facilities (and nine halfway houses) with positive COVID cases, up from 21 only a week ago.

At the same time, the BOP is moving to send the first wave of vulnerable inmates to home confinement under The CARES Act. A BOP release last week asserted that since Barr issued the March 26 memo “instructing us to prioritize home confinement as an appropriate response to the COVID-19 pandemic, the BOP has placed an additional 886 inmates on home confinement.”

There is substantial basis for taking the BOP’s numbers with a grain of salt. The agency’s COVID-19 resource page updates its numbers daily, but it notes that the numbers include only inmates and staff “who have confirmed positive test results for COVID-19.” The problem is that testing appears not be getting done, and you can count what you don’t test.

Ten days ago, the US District Court for the Eastern District of New York ordered the wardens at MCC New York and MDC Brooklyn to file twice-weekly reports with the court on the status of COVID-19 testing at the facilities. In a report filed last Friday, the wardens admitted that only 17 inmates (out of a combined population of nearly 2,500) had been tested. Only five tests had been done in the last week.

Seven of those inmates have tested positive for COVID-19, according to the report.

David Patton, Federal Defenders’ executive director, said the number of oﬃcially conﬁrmed cases does not comport with reports he’s hearing from incarcerated clients about the apparent spread of COVID-19. “It’s hard for me to quantify how much more robust the testing ought to be, but we certainly receive a lot of reports from clients about people in their units who seem to be quite symptomatic,” Patton said.

At FCI Elkton, the BOP is reporting that only 13 inmates and 14 staff members have tested positive, Joseph Mayle, president of union representing many of Elkton COs, told a Youngstown, Ohio, TV station last Thursday that 67 inmates have either tested positive or are showing symptoms of the virus and that the entire inmate population is being isolated. Plus, he said, 44 inmates have been hospitalized, with 14 on ventilators. Twelve staff members, not the official count of nine, have tested positive, according to Mayle.

At FCI Danbury, the BOP reported a week ago that fewer than a dozen inmates and only six staff members at the prison had tested positive. On the same day, the Hartford Courant newspaper reported that “inmates claim the number is higher. ‘I am well for now,” an inmate told the Courant on April 2. “It’s ripping through here like crazy. I just got back from medical. I don’t have symptoms. But they have many confirmed cases here. That’s according to medical.”

Sure enough, as of Easter Sunday, the Danbury count had tripled to 37 inmates and 30 staff with COVID-19.

Beyond questions about the accuracy of the BOP’s numbers are complaints about quarantines. In some instances, according to Politico, inmates being quarantined before being sent to home confinement are housed near prisoners being isolated because they’re suspected of having the virus. Politico says that wives of inmates at FCI Cumberland told it the facility is using the facility’s special housing unit – single- or two-person cells where inmates remain locked down for 23 hours daily – to hold both categories of prisoners. “They’re quarantining these healthy inmates with sick inmates that are already down there,” said Angela Sanks, whose husband, Collie, was due out in 2022 and was taken to the SHU for potential release several days ago.

The spouse of an Elkton inmate said her husband, who’s due out of prison in August of next year, was one of 56 inmates whose names were called a week ago to report for quarantine so they could be sent on home confinement. “They were all told: you’re going home,” she said. But on Wednesday, 54 of the men were sent back to their cells. “They told them, sorry, you’re not going anywhere, because they’d approved only two of them to leave.”

At MDC Brooklyn, a union official accused officials of transferring inmates with COVID-19 out of quarantine and back into general population only days after they’ve tested positive. BOP officials did not respond to questions about the allegation, according to The Intercept, but the charge was then raised in a court filing by federal public defenders. If the allegation is accurate, it would “call the credibility of the BOP’s representations about the practices at MDC Brooklyn into serious question,” lawyers with the Federal Defenders of New York wrote in a letter to the judge, saying it would “speak to the risk to all the inmates from such practices that are contrary to the CDC’s advice, and in particular the risk to vulnerable inmates.”

In a video address to staff last Friday, BOP Director Michael Carvajal reported that the agency has adequate supplies of personal protective equipment, and was a priority recipient for COVID-19 test kits. He acknowledged that the Centers for Disease Control inspected FCC Forrest City last week, and has been advising FCI Oakdale staff. The Central Office has sent 45 additional COs and a medical support team to Oakdale, and has accepted help from the Ohio National Guard and Army Corps of Engineers at Elkton.

Carvajal said 10 UNICOR factories have pivoted to the manufacturing of masks, nonsurgical gowns, shields, blankets and linens, emergency water and milk supplies and hand sanitizers. He also reported that inmate movement has been cut by 80%, but that there would always be some transfers due to court order.

Georgetown University assistant law professor Shon Hopwood, wrote last week in The Appeal that no one should “look to the DOJ to release enough people to make prisons and their surrounding communities safe.”