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Beating Up The BOP Over CARES Act Home Confinement – Update for May 6, 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.

BOP TAKING IT ON THE CHIN OVER COVID-19 HOME CONFINEMENT MOVING TARGET

Hand in hand with criticism of the BOP’s COVID-19 management, courts and the media are blasting the Bureau’s bungling of its CARES Act home confinement authority.

punchinface180423For those of you who just came in, the CARES Act authorized the BOP to send inmates to home confinement during the COVID-19 emergency, in order to get inmates with medical vulnerabilities out of prisons ahead of the novel coronavirus pandemic.  Attorney General William Barr directed the BOP to act expeditiously, and laid out a series of standards by which the BOP should measure whether an inmate should be sent home.

The BOP applied the standards, and told a lot of people they would be going home. Then, in an abrupt about-face, the BOP decided that the AG’s standards weren’t enough. The Bureau retroactively applied a requirement that the inmate have completed 50% of his or her sentence in order to qualify for CARES Act home confinement, and told many of the people in pre-release quarantine that they would not be going to home confinement after all.

Then the DOJ said that the 50% standard wasn’t a standard at all, and then the BOP said, well, maybe not a standard, just a priority. And the shell game continued…

Last week, the BOP and DOJ were sharing the flak for the snafu.

Forbes noted, “Attorney General Barr gave some direction to the BOP and it dropped the ball. Individuals who were told they were being released from prison… have now been told they are staying put. This could have been avoided. The strain on the court system has been burdened with Compassionate Release motions that have wasted the time of judges, defense attorneys and prosecutors when all along the BOP could have acted to release vulnerable inmates. These resources, this personal pain, could have been avoided if the BOP just used its own policies.”

AP wrote, “The Bureau of Prisons has given contradictory and confusing guidance how it is deciding who is released to home confinement in an effort to combat the virus, changing requirements, setting up inmates for release and backing off and refusing to explain how it decides who gets out and when.”

shellgame200506NBC analyst and former US Attorney Glenn Kirschner last week blamed Barr. “Shifting and changing inmate release policies have caused widespread confusion. The lack of a clear, common-sense Justice Department/Bureau of Prisons policy prompted one federal judge to sternly rebuke the government, saying the procedures were ‘illogical’ and ‘kafkaesque…’ Simply put, the Bureau of Prisons flip-flops are yet another example of Barr’s lack of leadership and a sign of a Justice Department in free fall.”

In a lawsuit by inmates at the Federal Medical Center in Devens, Massachusetts, against BOP management of the COVID-19 pandemic there, the BOP explained to the court that some of the petitioning inmates were ineligible for CARES Act release under the BOP’s 50%-of-sentence standard. The petitioners shot back, “Although Respondents use words like “required criteria” and “ineligible” to describe their decision to bar so many people from being transferred to home confinement, they cannot defeat a claim of deliberate indifference by arguing they have tied their own hands with bureaucratic red tape. That is not a defense; it’s a confession.”

Forbes, The Federal Bureau Of Prisons’ “List” Has Caused Confusion in Courts and Prisons (April 24, 2020)

AP, Federal inmates battle mixed messages on home confinement (April 28, 2020)

NBC, Is Michael Cohen getting out of prison? Why Barr’s coronavirus release rules deserve scrutiny (April 28, 2020)

Petitioner’s Reply (Dkt. 38), Grinis v. Spaulding, Case No. 20cv10738 (filed April 27, 2020)

– Thomas L. Root

Last Week Was Lousy for the BOP… and Inmates – Update for May 4, 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.

SKYROCKETS IN FLIGHT

The Bureau of Prison’s official count of inmates with COVID-19, already widely disbelieved as being a gross undercount, skyrocketed last week from 799 on Sunday night to 1,926 inmates at 51 facilities last night.

rocket190620About 70% of all infections are at the federal prisons at Terminal Island, California, the Federal Medical Center at Ft. Worth, Texas, and the Butner prison complex in North Carolina. Terminal Island has the highest number of COVID-19 cases at 620 inmates.

Eleven inmates died last week, bringing the total COVID-19 deaths in the BOP to 38. The one that sparked the most outrage was that of Andrea Circle Bear, a 30-year old pregnant inmate with a 26-month sentence. Assigned to the women’s Federal Medical Center Carswell, also in Fort Worth, she was put on a ventilator March 31 and delivered her child by caesarean section the next day. Ms. Circle Bear never came off the ventilator, and died of COVID-19 on Apr 28.

“It’s an outrage that Andrea Circle Bear, a near full-term, pregnant woman with underlying medical conditions, lost her life while in federal custody,” Congressman Jerrold Nadler (D-New York), chairman of the House Judiciary Committee, told Reuters. “We have a moral and constitutional duty to prevent additional deaths among those who are detained or imprisoned.”

Sen. Richard Durbin (D-Illinois), who sits on the Senate Judiciary Committee, said, “Simply put, this tragic death was preventable.”

The BOP warned a week ago that as it began testing, the numbers would go up. But the BOP may not have been prepared for what the tests show: figures provided to Associates Press last week showed that out of 2,700 tests systemwide, nearly 2,000 inmates –¬ over 70% – have come back positive, strongly suggesting there are far more COVID-19 cases in the system than anyone knows.

corona200313Felicity Rose, director of research and policy for criminal justice reform at the progressive advocacy group FWD.US, said “the lack of testing is leading to a false sense of security,” NPR reports.

“We know that it’s spreading among staff, and that staff are bringing it into and out of the facilities,” Rose said. “We know there are people who are asymptomatic and are able to pass it along, but we just don’t know how many.”

AP reported that BOP’s response “to the growing coronavirus crisis in prisons has raised alarm among advocates and lawmakers about whether the agency is doing enough to ensure the safety” of inmates. At the same time, the AP said, BOP “communication policies are leaving families in the dark about their loved ones’ potentially life-threatening condition.”

The BOP reports on its website that MDC Brooklyn and MCC New York have no reported inmate COVID-19 cases as of May 3. In a filing that same day, however, the wardens of those facilities told the US District Court that they had 11 confirmed inmate COVID-19 cases.

In the class action suit pending against the BOP’s management of COVID-19 at FMC Devens, an expert on infectious diseases in prisons told the court, “As of April 26, 2020 FMC-Devens was reporting a single confirmed prisoner case of COVID-19. But because the facility is testing only symptomatic prisoners, this data point is not meaningful. It certainly does not mean that the facility is safe. Everything we know about the presentation and transmission of this disease points to the fact that when you have one confirmed case under a symptomatic protocol, it is fair to assume that there are many more cases at that facility..”

Following the Dept of Justice Inspector General’s decision to investigate whether the BOP is complying with available guidance and best practices on COVID-19 outbreaks, Senators Durbin and Chuck Grassley (R-Iowa) asked the IG to also look at whether the BOP is properly using its legislative authority to transfer at-risk inmates to home confinement:

We are concerned that BOP is not fully and expeditiously implementing relevant statutory authority and directives from the Attorney General. We are also concerned about how closely BOP is following CDC guidance or taking other preventive measures to adequately protect BOP staff and inmates from the spread of COVID-19… We also worry that BOP is significantly underestimating the rate of COVID-19 infection in BOP facilities because BOP has not yet conducted the number of tests on staff or inmates appropriate for facilities where a highly contagious virus can be easily spread.

Although an ACLU class action case against FCI Oakdale (Louisiana) was dismissed on jurisdictional grounds ten days ago, at least five other cases are active. In Massachusetts, the judge in the FMC Devens case heard argument on a preliminary injunction last week, and is expected to rule this week.

A motion for a preliminary injunction has been filed in Connecticut federal court by a class of inmates at FCI Danbury, seeking to have female inmates and vulnerable male inmates placed in home confinement immediately. The plaintiffs argue that at FCI Danbury, site of a what they call a “dangerous and uncontrolled” COVID-19 outbreak, the BOP has failed to effectively protect inmates.

shredder200504In a suit against MDC Brooklyn, the report of the plaintiffs’ expert – Dr. Homer Venters – criticized the sick call request system, hygiene, and using temperature measurement to diagnose COVID-19. Of more concern, the report accused MDC Brooklyn of destroying records of inmate sick call. Dr. Venters, an epidemiologist specializing in disease in prisons, told the court he was “alarmed by the facility’s failure to implement simple procedures, in-line with the Center for Disease Control guidelines, that could identify patients ill with COVID-19, prevent the spread of COVID-19 throughout the facility, and ensure that high-risk patients receive adequate care.”

In a similar suit against the MCC New York, the warden complained to the court last Friday that the BOP should not permit a similar inspection of its facility by a plaintiff’s expert. “Allowing an inspector to enter MCC would not only raise the usual security concerns,” the warden said in a filing, “but would present particular concerns given the COVID-19 pandemic. One key element of BOP’s protocol in response to the pandemic is to limit to an absolute minimum the number of people entering the facility, as discussed above. Permitting an outside inspector to enter MCC would run counter to those efforts.”

In Ohio, where a federal judge ruled that the BOP’s operation of FCI Elkton amounted to an 8th Amendment violation, BOP lawyers argued last week that the measures Elkton took to curb the virus’s spread had been effective. In an emergency motion to the 6th Circuit for a stay of the district court’s order, the BOP contended that its COVID-19 containment “efforts have been working as the number of new cases has been reduced.” The 6th Circuit denied the BOP’s request for stay.

Pinocchio160812Writing in Forbes, Walter Pavlo said, “I’m not sure where the attorneys got their stats but according to the BOP’s own website that tracks (under-reports) COVID-19 spread showed a marked increase in cases. Between the judge’s order on April 22 and the government response with this claim on April 28, positive COVID-19 cases went from 566 to 1,313… so I’m calling that one a Pinocchio. In fact, since the BOP first started tracking the outbreak, the numbers have increased every day and they are going up at higher rates since more testing began.”

In the Elkton lawsuit, the BOP was forced by the judge to publish a list of inmates who were medically vulnerable to COVID-19. The list of 837 inmates, released on Thursday, amounted to half of the institution.

Meanwhile, The Dallas Morning News reported that FMC Ft. Worth, a “federal prison that houses sick and elderly inmates, has emerged as a COVID-19 hot spot, setting staff and inmates on edge and fueling controversy over how the prison system is handling the pandemic.” As of last night, FMC Ft. Worth had 445 inmate cases, with four dead.

But the worst outbreak is in California, at FCI Terminal Island, just south of Los Angeles. The prison’s 620 coronavirus cases followed mass testing of more than 1,000 inmates by Los Angeles County Public Health officials, according to the BOP. The facility now accounts for more than a third of documented federal prison inmates with the coronavirus.

USA Today, More than 1,500 federal prisoners now have COVID-19 as officials expand testing (April 29, 2020)

The New York Times, U.S. Federal Inmate Dies of COVID-19 Weeks After Giving Birth While on a Ventilator (April 28, 2020)

The Marshall Project, A State-by-State Look at Coronavirus in Prisons (May 1, 2020)

AP, Over 70% of tested inmates in federal prisons have COVID-19 (April 29, 2020)

NPR, ‘A Ticking Time Bomb’: Advocates Warn COVID-19 Is Spreading Rapidly Behind Bars (April 28, 2020)

Letter to Judge Mauskopf in response to Administrative Order 2020-14 (April 30, 2020)

Forbes, After Seeing Federal Bureau Of Prisons Up Close, Federal Judges May See Sentencing Differently In Future (May 3, 2020)

Sens. Richard Durbin and Charles Grassley, Letter to DOJ Inspector General (April 21, 2020)

Declaration of Prof. Lauren Brinkley-Rubinstein, Dkt.38-1, Grinis v. Spaulding, Case No. 20cv10738 (D.Mass., filed April 27, 2020)

Martinez-Brooks v. Easter, Case No. 3:20cv569 (D.Conn.)

Chunn v. Edge, Case No. 1:20cv1590 (EDNY)

Fernandez-Rodriguez v. Licon-Vitale, Case No. 1:20-cv-03315 (S.D.N.Y.)

Wilson v. Williams, Case No. 4:20cv794 (N.D. Ohio)

Dallas Morning News, 3 deaths and rampant infections at a Fort Worth lockup are fueling criticism of how federal prisons are handling the pandemic (April 29, 2020)

Los Angeles Times, Coronavirus outbreak at Terminal Island prison worsens: 5 dead, 600 infected (May 1, 2020)

– Thomas L. Root

BOP to Inmates: “Ooh, You Gotta Be Quicker Than That” on CARES Act Home Confinement – Update for April 28, 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.

HOME CONFINEMENT RE-EXPLAINED YET AGAIN

cheese20042wEveryone thought that Attorney General William Barr was pretty clear in his March 26 and April 3 memos directing the BOP’s standards for emergency home confinement under The CARES Act. But, as I reported last week, the BOP moved the cheese, deciding that in addition to the AG’s standards, it should add the requirement that an inmate have served half of his or her sentence to be eligible for immediate home confinement placement.

By the way, everything indicates that by 50%, the BOP means one-half of the ENTIRE sentence, not just half of the 85% that nine out of ten inmates actually serve.

After a thundering herd of inmates already in quarantine were told to move back because they were not going home after all, the Dept of Justice muddied the waters last Wednesday even more, saying there was no 50% requirement at all.

The ink on that Wall Street Journal story wasn’t dry before a U.S. Attorney filed a letter in a New York in case admitting that yes, maybe there is a 50% requirement after all.

Without fanfare (which is how the BOP likes to do things, often making the agency its own worst enemy), the BOP issued an internal memorandum last Wednesday, directing that in deciding an inmate’s eligibility for CARES Act home confinement, some things are deal-breakers and some are only “sort of” deal-breakers.

priority200428For example the PATTERN score above a minimum does not exactly disqualify someone, but an inmate with a higher PATTERN score will not receive “priority treatment.” Conveniently, “priority treatment” – which sound more like an airline upgrade than an objective standard for prisoner placement – is nowhere defined. This leaves the BOP staff to read the tea leaves, and to simply deny CARES Act home confinement placement to anyone not entitled to “priority.”

On the issue of the 50%-of-sentence standard, the memo says

In addition, and in order to prioritize its limited resources, BOP has generally prioritized for home confinement those inmates who served a certain portion of their sentences, or who only have a relatively short amount of time remaining on those sentences. While these priority factors are subject to deviation in the BOP’s discretion in certain circumstances and are subject to revision as the situation progresses, at this time, the BOP is prioritizing for consideration those inmates who either have served 50% or more of their sentences, or have 18 months or less remaining on their sentences and have served 25% or more of their sentences.

Nothing is anathema to a bureaucrat like being told that he or she should exercise “discretion,” when the result of not exercising discretion is guaranteed to avoid criticism from above. Like Jim Boren said, “when in doubt, mumble.”

Politico noted that “the new standard opens the door to such releases for prisoners who have served at least 25% of their sentences and who have less than 18 months remaining on their term… Inmate advocates said the effect of the change would be modest, permitting the release of about 200 additional prisoners serving relatively short federal sentences.”

The BOP’s moving-target home confinement standards have ill served both the Bureau and the Department of Justice (with exactly which agency is the primary culprit remaining unclear). The Washington Post reported that “the early release of about 200 federal inmates to home confinement amid the coronavirus pandemic abruptly stalled earlier this week as the Bureau of Prisons and the Justice Department issued shifting, contradictory guidelines, interviews and documents show.”

quicker200428Seeming especially heartless – as only a bureaucrat can be – a number of inmates who had been told they were going home (and whose families were in some cases on the way to the prisons to retrieve them) were removed from prerelease quarantine were returned to cells. The Post said Friday that DOJ is saying that “the inmates will indeed be released, though others like them might face a harder time going forward,” although as of Tuesday morning, there is no indication that this is the case.

Even the judiciary is getting exasperated. U.S. District Judge Ronnie Abrams, seemingly frustrated with DOJ’s “ever-changing guidelines” to the BOP, last Friday ordered the immediate release of an inmate who had a high risk of contracting COVID-19 from FCI Danbury, which had yet to transfer her to home confinement as promised.

Law360 reported that Judge Abrams said the DOJ’s shifting guidance to the BOP regarding home confinement and compassionate release has eroded her confidence that inmate Haena Park would be released on April 30 as scheduled.

Politico, Feds again shift guidance on prisoner releases due to coronavirus (April 23, 2020)

BOP, Home Confinement (April 22, 2020)

Law360.com, Fraudster Freed As Judge Slams ‘Ever-Changing’ DOJ Advice (April 27, 2020)

Washington Post, Amid coronavirus pandemic, federal inmates get mixed signals about home-confinement releases (April 24, 2020)

– Thomas L. Root

Beaten Up On Its COVID-19 Response, BOP Announces More Testing – Update for April 27, 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.

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

corona200313Last 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.”

plague200406The 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.

math200427The 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.”

covidtest200420“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

BOP Does Not Apply 50% Standard to Home Confinement… Except When It Does – Update for April 24, 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.

ARE WE STRAIGHT ON THIS?

Seems like it was only a few days ago that BOP staffers were wandering through quarantine units, telling inmates who had been told that they were a few days from leaving to do the rest of their sentences in home confinement that, “oops, guess we’re wrong, you haven’t done 50% of your sentence yet, so you’re going nowhere.”

flipflop170920The sudden flip-flop in policy, engrafting a new restriction to the criteria for CARES Act home confinement, was cited last Monday in a filing in a Southern District of New York compassionate leave proceeding. The U.S. Attorney, having told the court a few days before that the defendant, Lewis Stahl, was eligible for CARES Act placement, withdrew the advice, telling the court that a new Dept. of Justice directive to the BOP prohibited home confinement placement to anyone who had not served at least 50% of his or her sentence.

Judge Ronnie Abrams was not amused. He promptly entered an order:

The Court is in receipt of the Government’s letter indicating that, in light of “new guidance” just issued to the Bureau of Prisons (BOP) by the Department of Justice (DOJ), the BOP now anticipates that Mr. Stahl is no longer eligible for home confinement or a furlough. Given the fact that the Government previously informed the Court that the BOP had already approved Mr. Stahl’s request for home confinement, and the U.S. Probation Offices in both the Southern District of New York and the Southern District of Florida had already approved his relocation request, the Government is hereby directed to provide the Court with an explanation from the BOP, including by way of affidavit from the appropriate representative, as to how the new DOJ guidance can affect these prior decisions. The Government shall do so no later than 5:00 p.m. on Wednesday, April 22, 2020. The Government shall also file a copy of the new DOJ guidance on the docket by that time. If it still does not have a copy of the new DOJ guidance by 5:00 p.m. on April 22nd, it shall provide the Court with additional details about the guidance including when it went into effect and who it applies to, as well as when it will be submitted to the Court.

On Wednesday, a BOP employee at FMC Devens echoed the government’s claim that an inmate must have served 50% or more of his or her sentence in order to qualify for home confinement placement under the CARES Act, in a declaration filed by the government in a Massachusetts case seeking an injunction to release inmates from the Federal Medical Center due to COVID-19.

confusion200424The government did not get around to responding to Judge Abrams until late yesterday. Before that, the Wall Street Journal reported in the morning that a DOJ spokesman had said on Wednesday “that federal prison officials could consider inmates for early release even if they haven’t yet served half of their sentences, clarifying a shifting policy that has sown confusion across the nation’s prisons and courts in recent days.”

The Journal reported that “Dozens of inmates who had been granted early release as part of an effort to stem the spread of the coronavirus were told this week they hadn’t served enough time to qualify, according to prisoners and court filings. Inmates, prosecutors and federal judges demanded prison officials explain their rules and criteria for releasing inmates during the pandemic.

The DOJ spokesman reportedly said the BOP “intends to expeditiously transfer all inmates to home confinement who were previously referred” for placement, “as long as such transfers aren’t forbidden by law or criteria set forth by Attorney General William Barr. More prisoners are approved for home confinement every day, the spokesman said.”

OK, you have it so far. The 50% standard did not apply, then it did apply, and now it does not apply again.

Then, last night at 5 pm, the U.S. Attorney in the New York case filed a rambling, boilerplate-laden declaration of an FCI Miami associate warden that nowhere directly answered Judge Abrams’ questions. But it did provide this interesting explanation of the BOP home confinement criteria:

[T]he BOP is currently assessing a number of factors to ensure that an inmate is suitable for home confinement including, but not limited to, reviewing the inmate’s institutional discipline history for the last twelve months; ensuring that the inmate has a verifiable release plan; verifying that the inmate’s primary offense is not violent, a sex offense, or terrorism related; and confirming the inmate does not have a current detainer…

[I]n order to prioritize its limited resources, BOP has generally prioritized for home confinement those inmates who have served a certain portion of their sentences, or who have only a relatively short amount of time remaining in those sentences. While these priority factors are subject to deviation in BOP’s discretion in certain circumstances and are subject to revision as the situation progresses, BOP is at this time prioritizing for consideration those inmates who either (1) have served 50% or more of their sentences, or (2) have 18 months or less remaining in their sentences and have served 25% or more of their sentences. As BOP processes the inmates eligible for home confinement under these criteria and learns more about the COVID-19 pandemic and its effect on BOP facilities, it is assessing whether and how to otherwise prioritize consideration.

spincycle200424It is now crystal clear: the 50% standard did not apply until last Monday, at which time it did apply until Wednesday, after which time it did not apply until yesterday, at which time it sort of applies (50% plus people are “prioritized,” whatever that means to the BOP).

At least all of that is resolved.

The Wall Street Journal, Confusion Hampers Coronavirus-Driven Inmate Releases (Apr. 23)

United States v. Stahl, Case No. 18 Cr. 694 (SDNY), Declaration attached to letter filed by U.S. Attorney (April 23, 2020)

Grinis v. Spaulding, Case No. 1:20cv10738 (D.Mass.), Declaration attached to Respondents’ Omnibus Response, Dkt.32-2 (filed Apr. 22, 2020)

– Thomas L. Root

DOJ Moves the Cheese on Home Confinement – Update for April 22, 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.

DEPT OF JUSTICE (NOT THE BOP) MOVES THE CHEESE ON CARES ACT HOME CONFINEMENT

The authority granted to the Federal Bureau of Prisons to designate home confinement for prisoners during the COVID-19 pandemic took another hit yesterday, in an especially callous announcement of additional restrictions that literally stopped some prisoners as they were about to get into cars to return home.

cheese20042wIn an affidavit filed in a Louisiana case against FCI Oakdale earlier this month, an associate warden from that facility reported that the BOP was considering inmates for placement in home confinement without regard to the amount of sentence the inmate had served. Last week, in an undated internal guidance memorandum, the BOP directed staff that if the inmate otherwise met the home confinement criteria, other factors – including the “percentage of time served” – “should be noted, but are not a reason for denial.”

However, as Politico reported last night, BOP staff told inmates in various prisons who had been put into prerelease quarantine almost two weeks ago that the policy had changed. Now, an inmate must have completed 50% of his or her sentence to be eligible for CARES Act home confinement.

FAMM immediately sent a letter to Attorney General William Barr, blasting the BOP for its “downright cruelty.” FAMM president Kevin Ring wrote that for families of inmates “to have the promise of early release snatched away under these circumstances is simply inexcusable. They deserve to know what is happening. Even before yesterday’s outrageous bait-and-switch, we were growing concerned with the BOP’s response to this crisis. We have received numerous reports about case managers and counselors giving incorrect information and contradictory answers to people exploring early release options…”

It turns out, however, that the wrong actor may be getting the blame. In a letter filed in an inmate’s compassionate release motion proceeding on Monday, the U.S. Attorney corrected the government’s previous advice to the court that the inmate was eligible for CARES Act consideration:

The Bureau of Prisons (“BOP”) advised the Government this afternoon that the Department of Justice (“DOJ”) has just issued new guidance to the BOP requiring that an inmate serve at least fifty percent of his or her sentence in order to be eligible for placement on home confinement. Based on the new guidance, the BOP anticipates that Stahl, who has served approximately 23% of his sentence, will not be eligible for home-confinement placement at this time. With respect to Stahl’s application for compassionate release, the BOP has advised that Stahl’s application, which the BOP received on April 3, remains under review and the BOP anticipates reaching a decision on it prior to the expiration of the 30-day period set forth in Section 3582(c)(1)(A).

In a footnote, the government admitted that it “has not yet seen a copy of the new DOJ guidance, but the U.S. Attorney’s Office was advised of it by the BOP today in other cases as well.”

So the culprit is Barr’s DOJ in this one, not the BOP. Assigning blame hardly matters to the hundreds of inmates affected by the sudden change, just as it hardly means that there isn’t plenty of other blame to spread around.

movingtarget200422Yesterday, Forbes magazine blasted the BOP for its muddled handling of the CARES Act home confinement program, complaining that “inmates around the country have been informed by case managers at each facility about the existence of a ‘list’ of inmates that could be sent home to some sort of Home Confinement to complete their prison term. However, the parameters of that ‘list’ and who is eligible has been something of a mystery as have the rumors of mass release of inmates across the country… it just has not happened.”

Forbes noted that one such rumor, that everyone at FCI Otisville camp was going to home confinement, was debunked by a BOP statement:

We would like to clarify the rumor that has recently been circulating about the purported closure of satellite camp at FCI Otisville. This information is not true. The majority of inmates at the satellite camp at FCI Otisville began transferring into the main institution (a medium security facility) … Many of these inmates are minimum security and minimum risk of recidivism, which are qualifications under the Attorney General’s guidance to BOP. Staff at Otisville are currently reviewing all inmates for their suitability for home confinement or furlough. Some of these inmates may not ultimately qualify but by proactively moving the inmates into quarantine now, eligible inmates will be able to release form the institution sooner.

Forbes concluded that “If you are not confused, you should be!” Yes, confused and disheartened. But the blame for moving the 50%-completion cheese apparently lies with DOJ, not BOP.

Politico, Trump administration reverses prisoner coronavirus release policy, advocates say (April 21, 2020)

FAMM, Letter to Attorney General William Barr (April 21, 2020)

United States v. Stahl, Case No. 18 Cr. 694 (SDNY), Letter filed by US Attorney (April 20, 2020)

Forbes, Lack Of Direction From Bureau Of Prisons Showing In Federal Court (Apr 21)

– Thomas L. Root

BOP Extends Quarantine As Questions About Its Competence Continue – Update for April 16, 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.

BOP SAYS IT’S “DOING PRETTY GOOD” ON COVID-19

Coronavirus has swept through the Federal Bureau of Prisons in the past three weeks, leaving over 725 confirmed cases among inmates, at least 16 prisoners dead, and, in the words of CNN, “raising concerns about the government’s handling of the crisis.” In response, the BOP has announced Phase VI of its COVID-19 response, which seems to consist primarily of another month of inmate lockdown.

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Inside some facilities, CNN reported last weekend, inmates have said they are locked in crammed and cramped cells without face masks and enough soap, and guards have grown concerned that they could be spreading the disease to their families. At a prison in Butner, North Carolina, the number of cases jumped by dozens – nearly 400% – earlier this week. At FCI Oakdale, Louisiana, where six inmates have died in recent days, corrections officers had to quell a small uprising with pepper spray on Wednesday, an official at the prison said.

Last weekend, BOP Director Michael Carvajal defended the steps the agency has taken to address the pandemic: “I don’t think anybody was ready for this COVID, so we’re dealing with it just as well as anybody else and I’d be proud to say we’re doing pretty good,”  Carvajal, who was named director in late February, told CNN.

Actually, the correct grammar would be “doing pretty well.” But mangled English is hardly the biggest problem with Mike’s auto-hagiographic assessment.

The Northwest Arkansas Democrat Gazette released emails yesterday in which Arkansas health officials discussed whether the BOP fully understood the “seriousness” of the coronavirus outbreak at the FCI Forrest City federal prison, and whether prison officials were fully cooperating with the mitigation effort. Although Director Mike spun the Centers for Disease Control inspection of FCI Forrest City as being the result of a BOP request for assistance, the released emails show that shortly after the first positive COVID-19 case at the FCI was disclosed on Friday, April 3rd, Dr. Naveen Patil, the Arkansas Department of Health director for infectious diseases, questioned the prison’s efforts and expressed a desire for CDC backup.

testing200413When an Arkansas state inmate came down with the virus, Mother Jones reported yesterday, prison officials immediately tested 48 other inmates in the unit, finding that 46 of them – almost all of whom had no symptoms – were infected. But the BOP’s COVID-19 planning has left the agency with no ability to test.  “We have very, very limited amounts of the testing kits,” Brandy Moore, secretary treasurer of the national union that represents correctional officers in federal prisons, was quoted as saying by Mother Jones.

At FCC Terre Haute, Indiana, “we have between 2,500 and 3,000 inmates, and we were given four tests,” Steve Markle, another leader of the national union who works at the prison, told Mother Jones in late March. At FCI Oakdale, correctional officers were told to stop testing people and just assume that anyone with symptoms had been infected, according to Ronald Morris, president of the local union there — even though, as shown by the Arkansas state prison experience, plenty of people can be asymptomatic.

All of this, Mother Jones reported, “is to say that statistics reported by the Federal Bureau of Prisons are likely massive undercounts. “Our numbers are not going to be adequate because we’re not truly testing them,”  Moore said.

Still, the BOP’s COVID-19 numbers – which the agency promised would be updated every day at 3 pm but which, each day, seems to be reported later and later – were updated after 6 pm last night to report COVID-19 had been confirmed in 449 inmates and 280 staff, spread across 43 BOP facilities. The number is undoubtedly much higher.

data200416Meanwhile, in a filing in the Eastern District of New York yesterday, the BOP admitted that “‘because of the shortage of tests, testing is currently reserved for those meeting’ certain criteria, including the kind of symptoms the inmate is facing, his potential exposure, whether he is high risk and whether he works in a high-contact role such as food service.” Through Tuesday, April 14, the number of inmates tested at MCC New York and MDC Brooklyn remained at 11 (the same number reported the prior Friday).

If you don’t test, you cannot confirm. If you cannot confirm, your data are meaningless.

Perhaps most sobering was a report in the Santa Barbara Independent that an inmate, Efrem Stutson, was released on April 1st and put on a Greyhound bus to San Bernardino by USP Lompoc officials while he had a hacking cough and was so ill “he could hardly hold his head up.” Efrem refused to go to the hospital that night, but the next morning his family insisted. Paramedics wearing protective equipment rushed him to Kaiser Permanente medical center in Fontana. Doctors diagnosed him with COVID-19 and put him in quarantine. No visitors were allowed. Four days later, Efrem died.

His sisters are heartbroken — and furious, the Independent reported. “Why did they release him so sick?” one asked. “They sent him home on his deathbed.”

death200330A USP Lompoc spokesman confirmed that Efrem was released on April 1st. But for “privacy, safety, and security reasons,” he said, he could not comment on Efrem’s medical condition at the time. “All inmates, prior to releasing from the BOP, will be screened by medical staff for COVID-19 symptoms,” he said. “If symptomatic for COVID-19, the institution will notify the local health authorities in the location where the inmate is releasing, and transportation that will minimize exposure will be used, and inmates will be supplied a mask to wear.”

Laura Harris-Gidd, Efrem’s sister, said he wasn’t wearing a mask when she picked him up at the bus station. “I just don’t understand why they would let him out instead of quarantining him and taking care of him,” she said. “I think they’re hiding a lot.”

“We’re dealing with it just as well as anybody else,” BOP Director Michael Carvajal said, “and I’d be proud to say we’re doing pretty good.” Right.

Hold you head up high, Mike.

CNN, Exclusive: ‘I don’t think anybody was ready for this Covid,’ says head of federal prisons (Apr 10)
Northwest Arkansas Democrat-Gazette, Emails detail talks on illnesses at federal prison (April 15)
Mother Jones, Want to Know How Fast Coronavirus Can Spread in Prison? Look at Arkansas (April 15)
New York Law Journal, Brooklyn Federal Lockup Officials Describe ‘Shortage of Tests’ in Newly Filed Documents (April 15)

– Thomas L. Root

BOP Relaxes COVID-19 Home Confinement Standard – Update for April 14, 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.

BOP LOOSENING CARES ACT HOME CONFINEMENT STANDARDS

An affidavit filed last Friday in a class-action lawsuit against the BOP seeking the release of hundreds of high-risk inmates at FCI Oakdale suggests that standards governing which high-risk inmates can go home may be loosening.

release161117The American Civil Liberties Union sued the BOP in the U.S. District Court for the Western District of Louisiana a week ago, claiming the Dept of Justice did not go far enough in a directive issued by Attorney General William Barr to begin releasing vulnerable prisoners to home confinement.

In a filing last Friday, the BOP said it was using seven criteria to place inmates in home confinement under the authority granted to it by Section 12003(b)(2) of The CARES Act: 1) The primary offense is not violent, sex offense or terrorism; 2) the inmate has no detainer; 3) mental health care level is less than IV; 4) the inmate’s PATTERN score is minimum; 5) BRAVO (BOP’s existing risk evaluation tool) score is low or minimum; 6) the inmate has completed at least 50% of sentence; and 7) no disciplinary actions within the past 12 months.

However, the FCI Oakdale Associate Warden said in the affidavit last Thursday that the requirement that the inmate have completed half of his sentence in order to qualify has been dropped. The AW also said that he expected that “the institution may consider expanding the criteria for review” even further.

The affidavit noted that the most common reasons for ineligibility appear to be history of previous violence or sex offenses.

Placement in home confinement, once approved, still requires the release plan be evaluated by the US Probation Office. “In order to facilitate faster removal of approved inmates from the prison facility,” the AW said, “the BOP has provided its Wardens with additional guidance allowing the use of non-transfer furloughs up to 30 days in length in specific circumstances. As inmates are approved for home confinement through the above-described review process, they may also be considered for such a furlough if they meet the criteria.”

prisonhealth200313Meanwhile, as more is being learned about COVID-19, medical conditions that were once considered irrelevant are being reconsidered. The CDC reported last week that hypertension, previously discounted as a risk factor, and obesity “were the most common comorbidities seen in patients hospitalized for COVID-19.” The study found that 50% of the COVID-19 hospitalizations studied while 48% had obesity, about 35% reported chronic lung conditions such as asthma, and diabetes mellitus and cardiovascular disease were seen in 28%.

Notably, the report said, of 580 patients with available race/ethnicity data, 45% were non-Hispanic white, while 33% were non-Hispanic black. A CDC doctor who worked on the study said this suggests “black populations might be disproportionately affected by COVID-19.”

Washington Post, ACLU seeks release of federal prison inmates where 5 died (Apr 6)

Bureau of Prisons, BOP’S COVID-19 INMATE REVIEW UPDATE (filed in Case No. 2:20cv422 (WD La., Apr. 10, 2020)

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

Politico, Virus-wracked federal prisons again expand release criteria (Apr 11)

– Thomas L. Root

COVID-19 Numbers Rise, BOP Scrambles – Update for April 13, 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.

THE WEEK IN COVID-19

corona200313A 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.

testing200413Ten 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.

pinocchio200413At 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.”

pantsonfire160805At 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.”

proactive200413

“They are always and always have been reactive instead of proactive,” Elkton union official Mayle said.

Sentencing Law and Policy, Latest BOP numbers reveal continued increases COVID-19 cases among federal facilities, inmates and staff (and more releases to home confinement) (Apr. 10)

BOP, Inmate Death at FCI Oakdale I (Apr 10)

BOP, Inmate Death at Butner I (Apr 12)

Law.com, No Coronavirus Tests Since Friday at New York City’s Federal Lockups, Mandated Report Reveals (Apr 7)

Bureau of Prisons, Letter filed in response to Administrative Order 2020-14 (EDNY Apr 9)

Cleveland Scene, The Latest out of Elkton Federal Prison, Where Horror Show Continues Apace (Apr 10)

Hartford Courant, With 20 testing positive for coronavirus, Danbury federal prison ordered to release high-risk inmates to home confinement (Apr 4)

Politico, U.S. prisons’ virus-related release policies prompt confusion
(Apr. 10)

The Intercept, Internal Prison Guard Email Contradicts Government’s Claims To Judges About Containing Coronavirus At Federal Detention Center (Apr. 10)

COVID-19 Video Update: April 10, 2020

The Appeal, Don’t Look To The DOJ To Keep Federal Prisons And Their Surrounding Communities Safe During The Covid-19 Pandemic (Apr 8)

– Thomas L. Root

“Risky Business” for Vulnerable Inmates – Update for April 9, 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.

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?

prisonhealth200313The 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.

getoutofjail200319The 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