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BOP Cooks Books, Congress Stirs Pot – Update for April 6, 2021

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

BOP COOKING THE COVID BOOKS, ACLU SAYS

White-collar crime inmates could learn something about slick accounting from the BOP.

cookbooks210406Up until five weeks ago, the BOP reported the total number of inmates who had tested positive for COVID-19, adding to the tally daily as new cases arose. As I reported last week, since February 24, the BOP has been changing the number daily by not just adding new cases, but by subtracting inmates who had tested positive in the past but who were no longer in custody. This accounting legerdemain has let the BOP understate the number of inmate cases by at least 1,115 through the end of March, which has reduced the positivity rate by a point, from 43.77% (had those inmates remained on the rolls) to 42.75% without them.

The Marshall Project reported the trickery last week, noting its weekly COVID prison “data no longer includes new cases from the Federal Bureau of Prisons, which has had more prisoners infected than any other system. In early March, the bureau’s totals began to drop because they removed cases of anyone who was released, a spokesman said. As a result, we cannot accurately determine new infections in federal prisons.”

The ACLU and other prison watchdog groups contend the BOP’s testing procedures are inadequate. According to the Riverfront Times, Sharon Dolovich, the director of the UCLA Law COVID-19 Behind Bars Data Project, said, “We know that those are under-counts because there are many facilities that are reporting zero, or under ten or under twenty infections,” Dolovich says. “And both because of what we know from COVID, and from what we’ve seen in countless facilities a year into the pandemic, we know that if you’re a prison with twenty infections, you have many more than twenty people who are infected.”

Maria Morris, director of the ACLU’s National Prison Project, said that BOP officials are motivated to under-test and therefore to under-count infections. “And then they can say COVID isn’t a problem in our facilities. ‘Look at how low our numbers are,'” she told the Riverfront Times.

A BOP spokesperson responded that BOP employees work closely with local health departments to ensure priority testing is provided to staff who are in close contact with COVID-19-positive personnel, while the federal prison agency has obtained a national contract to perform all staff testing.

battleplan210406“Whatever policies they have on paper aren’t actually being implemented,” Dolovich replied. “So they could tell you things that actually sound good in theory. But when you actually talk to people incarcerated in the various facilities, they will tell you that the reality is very different.”

Even before the BOP’s latest numbers game, Senators Elizabeth Warren (D-Massachusetts) and Cory Booker (D-New Jersey) reintroduced the Federal Correctional Facilities COVID-19 Response Act (S.328 in the Senate) to address inadequacies in the BOP’s COVID response.

The legislation would require correctional facilities to begin providing free, weekly COVID-19 testing and vaccines to both the incarcerated and their employees and assure that they offer free medical care to those who test positive for it. Oversight would include requiring these facilities to submit weekly testing data to the Department of Justice, the Centers for Disease Control and Prevention (CDC), and state public health officials. CDC officials would be dispatched to sites where outbreaks emerged within 72 hours.

BOPCOVID-19-200622“The Department of Justice’s response to the COVID-19 pandemic has been unacceptable and has placed nearly 2.3 million incarcerated people in danger,” Booker said. “It is well known that people in prison and jail tend to have much higher rates of underlying health issues than the general public, and the conditions of confinement make social distancing virtually impossible. As a result, people in prison and jail are disproportionately contracting and dying of COVID-19.”

The BOP ended yesterday claiming only 371 sick inmates. The number of sick staff, however, remains stubbornly at about where it was a week before, 1,268. COVID is still present in 116 facilities. While the BOP claims generally to have delivered 110,489 shots in arms, its detailed listing as of last Friday reveals only 19.2% of the inmate population has been vaccinated.

The Marshall Project, A State-by-State Look at Coronavirus in Prisons (April 2, 2021)

The Riverfront Times, Why Did a St. Louis Man Die in a Federal Prison Coronavirus Hotspot? (March 24, 2021)

Homeland Preparedness News, Legislation to provide greater oversight of federal prisons’ COVID-19 efforts reintroduced to Congress (April 5, 2021)

S.328, Federal Correctional Facilities COVID–19 Response Act 

– Thomas L. Root

ACLU Brings Second FCC Butner Suit Over COVID – Update for November 2, 2020

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

ACLU CLAIMS BOP COVID TESTING STRATEGY IS ‘INCOHERENT’

A coalition of civil rights groups led by the American Civil Liberties Union filed a class-action lawsuit against the Federal Bureau of Prisons last week over its handling of COVID-19 outbreaks at FCC Butner. The suit seeks an injunction to protect Butner prisoners, especially “vulnerable people… who, because of their medical conditions and/or advanced age, are at higher risk of severe injury or death from COVID-19.”

suit201102The lawsuit alleges that the BOP has “tested too few people at Butner, too infrequently, and too late,” and fails “to separate people who tested positive from those who tested negative for several days after receiving the test results.” The suit claims screening for symptoms has also been sporadic and ineffectual. The claims include allegations of inadequate cleaning and disinfecting procedures to adequately protect the men housed at Butner. As well, the allegations take aim at BOP management of CARES Act home confinement and compassionate release:

Despite direction from the US Attorney General months ago to expeditiously consider medically vulnerable people for home confinement or other release, Defendants continue to oppose motions for compassionate release made by medically vulnerable people, and they have failed to order furloughs or transfers to home confinement with sufficient speed and in sufficient numbers.

FCC Butner, located about 25 miles north of Raleigh, North Carolina, holds nearly 4,000 male inmates, with five facilities: a medical center, a minimum-security camp, a low-security prison and two medium-security facilities.

The civil rights groups filed suit against the BOP last spring, alleging that officials have failed to protect the Butner population. In early June, a federal judge sided with the BOP, agreeing it had “made reasonable efforts” to control the virus.

In another suit, Lompoc prison officials were ordered by a Los Angeles federal judge three weeks ago to expedite the evaluation of more than 120 inmates deemed eligible for home confinement due to their risks of COVID-19, although only 44 have been released since July. Five inmates brought the federal class-action lawsuit last May, seeking alternative confinement after a COVID outbreak at Lompoc infected more than 1,000 inmates and staff. At least four inmates died as a result of the outbreak.

The October 8 order directed the BOP to confirm that all 129 eligible inmates were released to home confinement.

expert160905The BOP had argued there is no specified timeline to release inmates to home confinement and that such release requires a three-judge panel, according to the response included in the Oct. 8 filing. Meanwhile, last Friday the agency blasted a court-ordered report by Dr. Homer Venters, countering with its own expert who concluded that “FCC Lompoc has acted reasonably and diligently in dealing with the COVID-19 pandemic based on the CDC guidance and BOP guidance applicable at the time, including the comprehensive BOP COVID-19 Pandemic Response Plan.” The expert complained that Dr. Venters “consistently bases his critical conclusions on unverified statements that were made to him by unidentified inmates, despite the harsh judicial criticism that he recently received in an Eastern District of New York COVID-19 case for following that unreliable methodology.”

The BOP’s COVID numbers – 1,766 sick inmates as of last Friday – are down 7% from a week ago. But ominously, the number of sick staff continues to climb, hitting 896 on Friday. A month ago, there were 724 sick staff. Nationwide, 75% of all prison and jail staff cases since March have recovered. But only 60% of BOP staff cases have done so, suggesting that BOP staff COVID cases are increasing at a much faster rate than the rest of the country. This is critical, because the staff is the primary means by which COVID is being brought into facilities.

Circumstances surrounding the latest inmate COVID-19 death, Joe McDuffie at El Reno, are concerning. Joe tested negative for COVID on Oct 13. After that, according to the BOP, “he received daily symptom checks and did not express any symptoms associated with COVID-19. On Friday, October 23, 2020, institution staff found Mr. McDuffie unresponsive.” He died later that day.

The BOP says 46% of the inmate population has been tested for COVID. One out of four of those 69,500 tests has been positive.

Hallinan v. Scarantino, Case No 5:20-ct-3333 (ED NC, filed Oct 26, 2020)

The Appeal, Coronavirus in Jails and Prisons (October 28, 2020)

BOP, Inmate Death at El Reno (October 29, 2020)

Santa Maria Times, Lompoc prison officials release 44 inmates to home confinement; more than 120 deemed eligible (October 30, 2020)

Respondents’ Statement, Torres v. Milusnic, Case No 20cv4450 (CD California, October 30, 2020)

– Thomas L. Root

ACLU Questions Implementation of First Step – Update for April 24, 2019

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

ADVOCACY GROUPS BLAST DOJ/BOP FIRST STEP ACT PLANNING AND IMPLEMENTATION

An Apr. 12 letter to the Dept. of Justice from the American Civil Liberties Union, writing on behalf of 10 other advocacy groups, blasted DOJ’s selection of the Hudson Institute as host of the Independent Review Committee, which is tasked with developing the First Step Act’s risk assessment system.

risk160627The IRC is to propose a risk assessment system for use in the enabling the Bureau of Prison’s programming to reduce recidivism, for which inmates will receive extra good time that can be used to cut sentences and award additional halfway house or home confinement. The First Step Act requires that the risk assessment system be in place by July 19, but DOJ is already two months behind.

The ACLU letter complained that while the Act required that a non-partisan non-profit host organization with expertise in the study and development of risk and needs assessment tools be picked, “the Hudson Institute is… a politically conservative think tank, whose research and analysis promotes global security, freedom and prosperity…” and “there is no evidence on its website, in the form of research publications or otherwise, which remotely suggests the organization has any expertise or experience in the study and development of risk and needs assessment systems.”

The letter also warned that neither the current BOP security classification system nor the U.S. Probation Office post-conviction risk assessment protocol should be adopted as a substitute for the Act’s risk assessment system, because neither was “designed to identify specific criminogenic needs and heavily relies on static factors that classify many people who do not go on to reoffend as high risk.”

Not the right halfway house - but you could get drunk here, which is what it may take to believe that BOP will implement FIRST STEP's transitional housing mandates.
Not the right halfway house – but you could get drunk here, which is what it may take to believe that BOP will implement FIRST STEP’s transitional housing mandates.

Finally, the letter noted that since 2017, BOP has made substantial cuts in rehabilitative programming, staff, and halfway houses. “There are 25,000 people in federal prison waiting to be placed in prison work programs, at least 15,000 people waiting for education and vocational training, and at least 5,000 people are awaiting drug abuse treatment,” the letter said. “There is nowhere near enough programming to help prisoners succeed in their communities upon release and thereby reduce recidivism overall. We therefore urge BOP to begin rebuilding rehabilitative services now.”

ACLU, Letter to David B. Muhlhausen (Apr. 12)

– Thomas L. Root