The Bureau of Prisons response to the coronavirus has largely been a disaster, and federal prison officials have avoided any meaningful accountability that desperate families of the incarcerated (and prison employees) if not the rest of the public, deserve.
The bureaucrats responsible for the calamity unfolding behind bars, the men and women whose actions and inaction have led to a spike in COVID-19 prison cases and an unyielding number of deaths, have not substantively answered even basic questions about growing fears that coronavirus clusters may, or already have, spread out from behind bars into nearby communities.
This lack of a candid and continuing public response is unacceptable, even for an agency that has long been considered one of the most secretive within the federal government. The level and intensity of congressional oversight over the BOP during this difficult time has been disappointing, too.
Members of the Senate Judiciary Committee have poked around the issue, speaking by telephone with U.S. Attorney General William Barr this month. Barr’s responses, evidently, satisfied the senators but have not been made public. The House Judiciary Committee also reached out to Barr about the BOP — but that was more than a month ago.
Despite a few success stories, the story of the bureau’s handling of the pandemic is not a pretty one. Federal prison officials downplayed the threat of COVID-19. Then they failed to adequately protect both prisoners and prison employees from the spread of the virus — requiring staff who may have been exposed to the virus to go back to work instead of into quarantine.
They kept prison factories running long after outside businesses began to shut down. They failed for weeks to publicly disclose the extent to which the virus had affected immigration detainees kept in privately run federal prisons.
Even attempts to alleviate the problem have been disjointed and riddled with mistakes. The Justice Department, for example, announced in early April that it was authorizing the early release into home confinement of certain medically vulnerable prisoners. That plan raised questions about racial disparities, but at least it was a plan.
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But the national rollout of this laudable program was half-hearted to start — there was a needless kerfuffle over the length of time a prisoner had to have served a sentence before becoming eligible — and then became bogged down in the sort of bureaucratic stagnation that has marked the history of the Bureau.
Thousands of federal prisoners have, indeed, been sent into home confinement as the pandemic worsened. But there are many more, also eligible, who have not yet been processed for release. Some prisoners were told they were being released only to have those orders rescinded as family members began to make their way to prisons to pick up their loved ones. Some federal prisoners, who were allowed to be released, first were shunted off to dangerous quarantine behind bars before they became eligible to leave prison. It is so bad that federal judges are now complaining about the Justice Department’s tactics.
Former Trump campaign manager Paul Manafort, a disgraced political consultant, was released to home confinement even though he did not appear eligible for special treatment. Andrea Circle Bear, a pregnant Native American woman sentenced for a nonviolent drug crime, was left in federal prison to die of COVID-19 shortly after she gave birth.
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If it all seems arbitrary and capricious, that’s because it is. All of this, by the way, all of the bureaucratic delays and crossed signals, the dubious justifications and excuses, came as the number of COVID-19 cases within federal prisons began to soar.
“We appreciate the attorney general updating us about precautions the department is taking in response to the pandemic, including the use of authorities granted under our bipartisan criminal justice reform law,” Sens. Dick Durbin, D-Ill., and Chuck Grassley, R-Iowa, stated after a phone call with Barr. “We were encouraged to hear the attorney general say that the COVID-19 pandemic will now be a basis for compassionate release and that it’s possible for some low-risk inmates being released to serve a 14-day quarantine in home confinement instead of in prison, depending on the circumstances.”
Depending on the circumstances, indeed.
If Grassley and Durbin don’t want to have a public hearing in the middle of a pandemic to ask BOP officials to explain what’s gone wrong, there ought to be another way to require federal prison officials to answer for their COVID-19 response. There also ought to be a way to ensure that those responses are made publicly available so we can judge, in real time, how the BOP’s response to the coronavirus is or is not shifting from week to week or even from day to day. Many of these responses surely will be unflattering to the bureau. Too bad. There are too many lives at stake to hide the truth.
Why did it take so long for BOP officials to implement widespread testing of prisoners? What changed within the agency to justify and explain the change in tactics? Was it because there weren’t enough tests? Was it because there weren’t enough medical staff available inside facilities to administer the tests? Was it because federal prison officials, and Justice Department executives, didn’t want to embarrass the president by uncovering more clusters of COVID-19? We should have these answers now, today, so that we can immediately evaluate the agency’s scrambled, desperate response to the spread of the virus behind bars.
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There are more questions that demand public answers. Why did it take federal prison officials so long to include COVID-19 data within the privately operated facilities within the national system? What, exactly, are the coronavirus testing parameters within those privately operated prisons? Why are there so relatively few positive COVID-19 cases in privately run federal prisons? Surely it’s not the quality of health care provided in those facilities. Is it because there has been less testing? In a system notorious for being arbitrary and capricious, what explains the disparate testing protocols within federal prisons?
Still more questions. What do BOP officials plan to do differently with prisoners now that they know coronavirus is a danger to communities surrounding federal penitentiaries? What role is the bureau playing in cases in which federal judges are resentencing prisoners in light of COVID-19? Is there anything Bureau of Prisons officials can do to ease the burden on overwhelmed federal judges who are struggling to deal with the flood of "compassionate release" cases now pending before them? Nothing I've seen or heard in the past few weeks suggests we should expect fulsome answers to these questions anytime soon from the Justice Department or BOP officials.
That's a shame not just for the families of prison employees and the incarcerated — especially those who have lost loved ones to COVID-19 inside federal prisons — but also for the rest of us seeking to hold accountable those responsible for what has happened.
Andrew Cohen, a former network legal analyst and commentator, is a fellow at the Brennan Center for Justice and a senior editor at The Marshall Project. He has covered the Justice Department for over two decades. Follow him on Twitter: @JustADCohen