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Six Months Later, BOP Making No Progress on COVID-19 – Update for September 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.

COVID-19 GRINDS ON

You’d think, reading enough BOP blandishments about its “Action Plan” to address the COVID-19 pandemic that today, six months after the pandemic began, we’d be doing better. Instead, thehe number of inmates sick with the virus climbed above 2,000 for the fourth time (May 5, June 3, June 7 and July 6), standing last night at 2,033, up 4% from last week’s 1,947. The number of sick staff has fallen 2%, from 643 to 631. The number of facilities with outbreaks has increased by two, from 112 to 114, representing 93% of all institutions (an all-time high).

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The BOP has done enough COVID-19 tests as of last night to test 36% of the BOP inmate population, if the BOP were testing each inmate once (which it is definitely not doing). Twenty-five percent of all tests are positive for COVID.

The Sentencing Resources Counsel for the Federal Defenders organization last week issued a blistering review of the BOP’s COVID-19 response, quoting Joe Rojas, a BOP employee and regional vice president of the American Federation of Government Employees Council of Prison Locals. “They’re making the virus explode.” The report identifies 19 BOP inmates “who died in BOP custody after filing —and in some cases, even after being granted—requests for release” and note that “at least four individuals — Adrian Slarzano, Gerald Porter, Robert Hague-Rogers, and Marie Neba — have died of COVID-19 after either testing negative or after BOP erroneously pronounced them ‘recovered’.” It noted the Washington Post’s description of prison response to COVID-19 as exemplifying “a culture of cruelty and disregard for the well-being of incarcerated people,” and described FMC Carswell, a women’s medical facility, as a “house of horror.”

plague200406The report observes that because of the First Step Act of 2018, inmates may file their own motions for compassionate release, but it complains that the 30-day mandatory exhaustion period before filing, “coupled with DOJ’s routine opposition, prevents vulnerable defendants from obtaining critical relief.” Significantly, the Report notes that “based on a survey of defense attorneys representing clients across the country, we are not aware of a single BOP-initiated motion for compassionate release based on heightened risk of severe illness from COVID-19 infection.”

Things are unlikely to improve in the coming months. The Institute for Health Metrics and Education (part of the University of Washington), predicts that the daily US death rate, “because of seasonality and declining vigilance of the public, will reach nearly 3,000 a day in December. Cumulative deaths expected by January 1 are 410,000.” Current deaths stand at 197,000. this is 225,000 more deaths from now until the end of the year.

To make matters worse, prisons are bracing for simultaneous outbreaks of the flu and COVID-19 as the weather turns colder. “The flu regularly spreads through prisons and jails in the US for some of the same reasons that COVID-19 does,” the Verge reported last week. “The facilities pack vulnerable people in close quarters, with limited access to soap or other ways to protect themselves against an infectious disease. Handling a single outbreak is already a struggle in these places, which often don’t do enough to protect the health of the people living in them. Now, they may have to handle two.”

plagueB200406Flu shots are offered to all BOP staff and older and health-compromised inmates, “but those guidelines don’t mean most inmates in the US get flu shots; outbreaks regularly happen in prisons where most inmates aren’t vaccinated.”

In the continuing and deadly game of COVID-19 whack-a-mole, the BOP is battling major outbreaks (over 100 cases) at FDC San Diego, Big Spring, USP Leavenworth, Coleman, Petersburg Low and Victorville. Other significant infections are going on at FTC Oklahoma, Waseca, FCI Miami, Forrest City and FDC SeaTac.

A Seattle-area newspaper published a story last week alleging that a BOP CO came to work one day in August with a fever and headache, spreading the virus throughout the facility before his shift ended. The paper said FDC SeaTac violated its own protocols of taking every staff person’s temperature before each shift, thus letting the coronavirus into the facility. As of last night, FDC SeaTac reported 46 sick inmates and seven sick staff.

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CoreCivic, the private prison operator that runs facilities holding immigration detainees and thousands of federal prisoners, is getting grilled as well. New Mexico’s congressional delegation wrote to ICE, Marshals and CoreCivic last month about conditions in Cibola County Correctional Institution, a CoreCivic immigration detention prison. CoreCivic took troublingly long to realize that it had “a massive outbreak in its facility endangering the safety of inmates, detainees, staff and the community,” the delegation said, noting that the state Department of Health had to direct CoreCivic to conduct mass testing. The delegation was also concerned that “correctional officers working at the Cibola facility are not wearing adequate [personal protective equipment] when escorting COVID-19 positive inmates into the local hospital.”

Neither any of the agencies nor CoreCivic has responded.

Sentencing Resource Counsel for the Federal Public Community Defenders, The COVID-19 Crisis in Federal Detention (Sept. 9, 2020)

The Verge, Prisons battling COVID-19 face another disease threat this fall (Sept. 11, 2020)

IMHE, Model Updates for Sept. 3, 2020

South Seattle Emerald, SeaTac Federal Detention Center Exposed Prisoners to the Coronavirus by Allegedly Failing to Follow Coronavirus Protocols (Sept. 7, 2020)

Santa Fe New Mexican, Prison’s virus outbreak brings fear to rural area (Sept. 12, 2002)

– Thomas L. Root

 

Prisons Not Testing Right For COVID, CDC Says – Update for August 26, 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 LOSING AT WHACK-A-MOLE

whack200602Not quite three months ago, Bureau of Prisons Director Michael Carvajal confidently told the Senate Judiciary Committee, “at this point, we have more recoveries than new infections. And I believe that this shows that we are now flattening the curve.”

What is being “flattened” is the BOP’s response to the pandemic.

Twelve weeks later – after inmates spiked July 26 at 4,413 – the BOP’s numbers have stopped falling, and in fact increased slightly. As of Tuesday night, 1,597 inmates were sick, up 8% from last week. Sick staff numbered 638, up 11% from a week ago, four more inmates died, bringing the total to 122, and COVID-19 was present in 109 facilities, 89% of BOP facilities.

Complaints continued last week about the BOP’s handing of the pandemic continue, mostly from staff. When the correctional officer union president at USP Thomson (Illinois) found out he was COVID-19 positive, the 20th BOP staffer there to come down with the virus, he told ABC news he had to find an independent testing site on his own. “Testing for staff isn’t available at the prison but they test inmates for COVID-19 at the prison,” ABC quoted him as saying. “Staff also can’t get tested due to being forced to work double 16-hour shifts almost on a daily basis.”

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Meanwhile, the Centers for Disease Control and Prevention issued a study last week that looked at 15 prisons, including five unidentified BOP facilities. The CDC found that mass testing at the facilities “suggests that symptom-based testing underestimates the number of COVID-19 cases in these settings. Mass testing resulted in a median 12.1-fold increase in the number of known infections among incarcerated or detained persons in these facilities, which had previously used symptom-based testing strategies only.” Symptom-based testing, of course, is the preferred BOP approach, in which only inmates with symptoms get tested.

Additionally, the study found that “in two federal prisons, all persons who had tested negative during mass testing events and had subsequently been quarantined as close contacts of persons testing positive were retested after 7 days. At retesting, 20.5% of persons in BOP prison 2 and 26.8% in BOP prison 3 had positive test results.”

As of last night, the BOP had still only conducted enough tests to cover 31% of the BOP population, with 26% of those tests coming back positive.

The failure of symptoms-only testing is illustrated in the whack-a-mole problems the BOP faces. Besides USP Thomson, the BOP is facing outbreaks at FCC Petersburg (Virginia), FDC San Diego and FCI Victorville in California, FCC Coleman (Florida), and FCI Manchester (Kentucky). Numbers are finally dropping at FCI Seagoville and FCI Beaumont (both Texas).

Marketwatch ran a piece last week on the cost to taxpayers of COVID-19 in prisons, noting that “the public understands the urgent need for action. A national survey found that 66% of likely voters, including 59% of those identifying as ‘very conservative,’ believe elected officials should consider measures to reduce overcrowding in prisons and jails. Survey research over many years has shown that most Americans believe the U.S. locks up too many people.”

poorcorresp200826Meanwhile, U.S. Senator Marco Rubio (R-Florida) is not happy, and last week, he let Attorney General William Barr know it. The Miami Herald reported that “nearly nine months after demanding an investigation of allegations of rampant sexual abuse at Coleman Federal Correctional Complex exposed in a Miami Herald story, Sen. Marco Rubio says he still hasn’t gotten a ‘substantive response’. And he is not happy — especially since there is new cause for concern with COVID-19.”

On Thursday, Rubio wrote to Attorney General William Barr to express his “dissatisfaction that the DOJ has not sufficiently responded to inquiries I have made in regard to FCI Coleman” about the allegations. As well, he complained that “my office continues to receive numerous complaints that FCI Coleman staff are not following the CDC’s Guidance for Correctional and Detention Facilities, which — among other measures — recommends BOP officers and inmates wear masks when in close proximity with others. Most concerning, my office has been made aware that facility management may have ordered staff to return to work despite testing positive for COVID-19. I have already requested the BOP take immediate action to address this allegation, and I look forward to the outcome of its investigation.”

ABC News, ‘Who is going to man the prison if everyone tests positive?’ Corrections officer union warns of dual threat facing federal prisons (August 19, 2020)

CDC, Mass Testing for SARS-CoV-2 in 16 Prisons and Jails — Six Jurisdictions, United States, April–May 2020 (August 21, 2020)

Marketwatch, U.S. taxpayers already pay a high price to support America’s giant prison population. Now COVID-19 is costing them even more (August 20, 2020)

Miami Herald, Rubio demands answers from Barr on sexual abuse, COVID response at Florida prison (August 20, 2020)

– Thomas L. Root

Has BOP Found ‘Peak COVID’? – Update for July 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.

BOP COVID NUMBERS MAY BE CRESTING AS CRITICISM OF BOP PANDEMIC RESPONSE GROWS

The number of Federal Bureau of Prisons prisoners with COVID-19 increased 14% last week to 4,413 as of Sunday night (an all-time high), after falling slight on Saturday. Yesterday, however, the number of infected inmates took a 7% plunge.

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It appears that all of that decrease was due to FCC Beaumont’s dramatic (some might say ‘miraculous’) decrease in reported cases, from 463 on Sunday night to 135 on Monday night. But for that decrease, BOP systemwide cases increased by 35.

Miracle200513Other numbers were not so encouraging. Infected BOP staff increased 33% to 405, and four more inmates died. Most ominously, 108 facilities have COVID-19, 88.5% of BOP joints, an increase of 9% over last week.

Of the 4,120 active inmate cases, Texas facilities FCI Seagoville has 1,257, the women’s FMC at Carswell has 529 cases, and Beaumont Low has 463. Other significant outbreaks are at FCI Miami and Coleman Low and Medium (Florida), Victorville Medium I (California), Butner Low (North Carolina), Elkton (Ohio) and Jesup (Georgia).

A report from the Dept. of Justice Inspector General released last week criticized BOP mismanagement of the pandemic at Lompoc. The report said two Lompoc BOP staff members came to work in late March despite experiencing coronavirus symptoms, although those symptoms were not detected during screening. Officials then failed to test or isolate an inmate who reported that he had begun having symptoms two days earlier and later tested positive. And thus it started.

Medical staff shortage limited inmate and staff screening for COVID-19 symptoms, and other staff shortages resulted in Lompoc officials delaying for 15 days the full implementation of staff movement restrictions required by BOP for institutions with active COVID-19 cases.

What’s more, the BOP’s use of home confinement authority in April was “extremely limited.” As of May 13, the IG report said, over 900 Lompoc inmates had contracted COVID-19 but only 8 inmates had been transferred to CARES Act home confinement.

Fault200728In a statement following the release of the report, the BOP said it had fixed nearly all of the issues identified by the inspector general. It blamed the Centers for Disease Control and Prevention guidelines for many of the problems cited in the report. “These findings must be placed in context, as these were unique circumstances where the BOP, along with the rest of the country, was learning about how to treat and manage this novel virus,” the agency said.

Meanwhile, in Los Angeles Federal Court, Judge Consuelo Marshall granted a preliminary injunction in a class-action lawsuit brought by the American Civil Liberties Union of Southern California that accuses the BOP Lompoc management of failing to take basic hygiene steps to protect those imprisoned.

The Judge ordered BOP officials to tell the court which inmates are medically eligible under CDC risk guidelines for release as part of a plan to reduce the population.

corona200323The BOP asked the judge to dismiss the lawsuit, noting it had built a field hospital and adopted mass testing in May. But after more than 70% of inmates at Lompoc Low tested positive, the judge found there was a “substantial risk of exposure to COVID-19, which is inconsistent with contemporary standards of human decency” and that the BOP had “likely been deliberately indifferent to the known urgency to consider inmates for home confinement, particularly those most vulnerable to severe illness or death.”

DOJ Inspector General, Pandemic Response Report 20-086, Remote Inspection of Federal Correctional Complex Lompoc (July 23, 2020)

CNN, DOJ watchdog report finds lack of staffing contributed to Covid outbreak in California prison (July 23)

Los Angeles Times, Judge orders release of vulnerable inmates at Lompoc prisons hit by virus (July 22)

Torres v. Milusnic, Case No 2:20cv4450 (C.D.Cal, entered July 14, 2020), 2020 U.S. Dist. LEXIS 131446

– Thomas L. Root