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AFTER A PUNISHING WEEK, BOP ANNOUNCES WIDER COVID-19 TESTING

Last Wednesday, a U.S. District Court for the Northern District of Ohio judge ordered the release or transfer of hundreds of elderly and vulnerable inmates at FCI Elkton, which has seen a particularly deadly and widespread outbreak of the coronavirus.

The ruling Wednesday from Judge James Gwin appeared to be the first that could lead to a group release of federal inmates as a result of the ongoing COVID-19 pandemic.

Gwin said he was granting a preliminary injunction because efforts to combat the virus at Elkton were failing. Six inmates there infected with the virus have died in recent weeks, with 59 inmates and 48 staff confirmed cases.

But with fewer than 100 of the 2,400 inmates at Elkton tested, the actual infection rate could be much higher, the judge said, calling the lack of testing at the prison a “debacle,” especially compared with Marion Correctional Institution, a state prison 80 miles west of Elkton that conducted thousands of inmate tests after 17 confirmed cases (and found over 2,000 inmates had the COVID-19 virus without symptoms). In a North Carolina state prison, more than 90% of the 458 infected inmates displayed no common symptoms.

The Elkton lawsuit also cited the dormitory-style design of most minimum and low prisons where inmates live in close proximity to one another.

The Elkton decision came the same day a federal court rejected a similar class-action habeas corpus case brought on behalf of prisoners at FCI Oakdale, ruling that the Prison Litigation Reform Act foreclosed the court from offering the same relief Gwin granted in the Ohio case. What the Oakdale plaintiffs sought, the Western District of Louisiana court held, “falls squarely within BOP’s authority and outside the purview of this Court… To rule otherwise would make this Court a de facto ‘super’ warden of Oakdale.”

The Bureau of Prisons’ efforts to combat the coronavirus are not failing only at Elkton. A month ago, the BOP reported a mere 10 inmates and 8 staff ill with COVID-19, in nine facilities. As of last night, the Bureau admitted to 799 inmates and 319 staff being sick. A month ago, no one had died. As of last night, 27 inmates and one staff member had perished, the latest four from FCI Milan and FMC Ft. Worth.

The public criticism of the BOP’s COVID-19 response is getting louder. A Southern District of New York federal judge slammed the Bureau last week for “illogical” and “Kafkaesque” quarantine policies that she says put inmates and the community at greater risk of contracting coronavirus. Judge Alison Nathan said of the BOP’s practice of putting inmates approved for home confinement into pre-release quarantine, “Community spread through individuals not showing symptoms is inevitable, including in units of inmates who have been approved for home confinement. This is an illogical and self-defeating policy that appears to be inconsistent with the directive of the Attorney General, ungrounded in science, and a danger to both [the defendant] and the public health of the community.”

The wardens of federal prisons MCC New York and MDC Brooklyn reported in a court filing last Friday that 19 out of over 2,400 inmates have been tested for COVID-19. Only three inmates have been tested in the last three weeks. The warden of FDC Philadelphia admitted in a court filing that not a single test had been administered there.

The Appeal reported that at FCI Ft. Dix (New Jersey) while 12 prisoners were confirmed to have COVID-19 as of April 23rd (the total as of last night was 29), “the only inmates that are being tested to see whether they have COVID are the ones who are being carried out on stretchers,” according to appellate attorney Matthew Stiegler. “Getting testing available to inmates and guards is critical to managing what seems to be an outbreak there, he said.”

The Fort Worth, Texas, Star-Telegram reported that despite a COVID-19 outbreak at FMC Ft Worth, no testing had been conducted.

Forbes summed up the problem: One is unable to monitor the effectiveness of the BOP COVID-19 response

because of a lack of testing and ‘presumed positive’ inmates not being recorded at all. As an example of “Presumed positives,” assume there are ten (10) inmates in a room and one has a high temperature and is taken to the local hospital where she tests positive for COVID-19. While that inmate is at the hospital, five other inmates start to have symptoms but are not taken to the hospital because their cases are not as severe. Those inmates are “presumed positive,” quarantined from other inmates in the compound, but not reported on the BOP’s COVID-19 web page.

Gwin wrote in his Elkton order that the BOP has acted with “deliberate indifference” – a term with 8th Amendment significance – by not sufficiently testing inmates. Forbes asked, “So what is the real number of inmates in federal prison that have been infected? According to science, you can expect it to hit 177,000, the total number of inmates in federal prison. It is simply not possible to conclude otherwise given the facts.”

Besides that, as the Charlotte, North Carolina, Observer reported a week ago, the BOP’s case tracking does not include privately run prisons holding federal prisons. NC Central University law professor Irving Joyner told the newspaper that lack of reporting out of privately-run federal prisons is another example “of dereliction of duty as it relates to the safety of that population that’s incarcerated by our government.”

Perhaps in response to the public and judicial whipping the agency was suffering last week, the BOP announced on Thursday it would “expand testing to seek out previously hidden asymptomatic inmates in an attempt to control the spread.”

“Asymptomatic inmates who test positive for COVID-19 can transmit the virus to other inmates,” the agency said, observing the obvious. “Expanding the testing on asymptomatic inmates will assist the slowing of transmission with isolating those individuals who test positive and quarantining contacts… The deployment of these additional resources will be based on facility need to contain widespread transmission and the need for early, aggressive interventions required to slow transmission at facilities with a high number of at-risk inmates such as medical referral centers.”

As a matter of pre-emptive defense, the BOP warned that the new tests will “increase the number of COVID-19 positive tests reflected on the BOP’s COVID-19 resource page on the agency’s public website.”

Politico, Judge orders transfer or release for some inmates at virus-wracked Ohio federal prison (April 22, 2020)

Forbes, Federal Judge In Ohio Says FCI Elkton Meets “Cruel And Unusual Punishment” Standard (April 23, 2020)

Wilson v. Williams, 2020 U.S. Dist. LEXIS 70674 (N.D.Ohio April 22, 2020)

Livas v, Myers, 2020 U.S. Dist. LEXIS 71323 (W.D.La. April 22, 2020)

Cleveland Plain Dealer, Why has Ohio’s Marion prison become the number-one coronavirus hotspot in the United States? (April 22, 2020)

Politico, Judge rips feds over prison quarantine policies (April 20, 2020)

Philadelphia Inquirer, One Philadelphia prison has yet to report a single case of the coronavirus. But it hasn’t tested any inmates (April 22, 2020)

The Appeal, Coronavirus Is Ready To Explode Inside Fort Dix Federal Prison, Incarcerated People And Their Loved Ones Say (April 23, 2020)

Fort Worth Star-Telegram, Sick, elderly and fearing coronavirus: Life inside Fort Worth’s women’s federal prison (April 20, 2020)

Forbes, Bureau Of Prisons Had A Response Plan For A Pandemic But Delayed Action (April 23, 2020)

Charlotte Observer, A second federal prison in NC has coronavirus cases, and U.S. officials aren’t tracking it (April 19, 2020)

Bureau of Prisons, BOP Expands COVID-19 Testing (April 23, 2020)

– Thomas L. Root