Senators Grill Feds on Inmate Protections During Pandemic

Dozens of family members of men incarcerated at Terminal Island Federal Correctional Institution held protest signs outside the facility Friday demanding answers about their relatives’ health as a Covid-19 outbreak sweeps through the prison. (Courthouse News photo / Martin Macias Jr.)

WASHINGTON (CN) — Tying the issue to nationwide protests over law enforcement killings of black Americans, senators on Tuesday pressed Trump administration officials on how federal prisons and immigration facilities are protecting inmates amid the coronavirus pandemic.

It will be two weeks until the Senate Judiciary Committee convenes a hearing on race and police use-of-force, an issue that has resurfaced following the death of George Floyd in Minneapolis, but senators said the federal response to Covid-19 outbreaks in prisons raises many of the same issues.

“When we are having this discussion, this is not only about the failure to protect detained people from the coronavirus and in that way a humanitarian issue, it is also a racial justice issue,” Senator Kamala Harris, D-Calif., said at a judiciary committee hearing Tuesday. “And we have to acknowledge it as such.”

Prisons have been a point of concern throughout the pandemic as potential hotspots, spawning a wave of litigation from inmates seeking to force changes in how state and federal prisons respond to the virus.

According to the federal Bureau of Prisons, 1,650 federal inmates are currently positive for coronavirus, along with 171 staff members. More than 3,600 inmates have recovered and 68 have died from Covid-19 as of Tuesday afternoon.

The officials who testified during Tuesday’s hearing told lawmakers that prisons and immigration detention facilities are difficult places to institute social distancing and other public health measures, but they are doing what they can to minimize the spread of the virus that has claimed more than 100,000 American lives.

Michael Carvajal, the director of the Federal Bureau of Prisons, told the committee that federal prisons have more inmates who have recovered from Covid-19 than are currently positive for the disease, suggesting outbreaks are controlled.

“What I’m trying to say is that we have at this point more folks recovered — both staff and inmates — and I think that that shows we are beginning to flatten the curve,” Carvajal said.

Federal Bureau of Prisons Medical Director Jeffery Allen, who testified wearing a surgical mask that covered his mouth but not his nose, told senators about 15,000 federal inmates have been tested for coronavirus in facilities around the country, though that data is not publicly listed on the agency’s website.

Many of the questions senators posed to Carvajal centered on BOP’s policy for transferring inmates to home confinement, an initiative that began with a landmark criminal justice reform bill signed into law in 2018 that has become a focal point of the federal response to the pandemic in prisons.

The $2.2 trillion Cares Act that Congress passed in March in response to the pandemic gave the U.S. Department of Justice greater authority to use home confinement for inmates in federal prisons, but many senators are frustrated that the administration has not used this tool more extensively.

Pointing to high-profile inmates like Paul Manafort who was transferred from prison to home confinement, senators wondered during the hearing whether minority inmates and those with fewer connections were receiving similar treatment.

“No American should receive a death threat for passing a fake $20 bill or selling a cigarette on the street and that’s frankly what unsafe conditions in our prisons and immigration detention facilities threaten to do right now, which is to impose a death sentence because of the pandemic in circumstances when that’s not reasonable,” Senator Chris Coons, D-Del., said.

Carvajal said more than 3,500 inmates have been transferred to home confinement since the Cares Act passed and Attorney General William Barr directed BOP to use home confinement for vulnerable inmates. 

He said those inmates the administration has deemed not qualified for release typically have been convicted of sex crimes or domestic violence or have substance abuse or mental health conditions that would make their transfer into the community more difficult.

Senator Cory Booker, D-N.J., pressed Carvajal to give lawmakers a breakdown of the demographics of people BOP has approved for transfer to home confinement. He said he is concerned implicit racial biases might be impacting the decisions, including in the tool BOP uses to assess which inmates qualify for home confinement.

“This to me is not what your convictions are, I know your honorable convictions, it’s about having the data to give an objective review,” Booker told Carvajal.

Carvajal assured Booker the administration is taking that concern seriously and that home confinement approval data tracks with the demographics of the federal prison population.

Henry Lucero, the executive associate director of enforcement and removal operation with U.S. Immigration and Customs Enforcement, presented a similar picture to lawmakers about the coronavirus response from immigration detention facilities.

He said facilities are operating at about 44% capacity and that the administration has put in place policies to isolate both the detainees who test positive for Covid-19 and those who encountered people who later tested positive.

Lucero also shot down reports of immigration detainees not having access to basic hygiene products like soap, saying all detainees are issued a three-in-one wash like is available in stores.

But Lucero drew audible surprise from Senator Dianne Feinstein, D-Calif., when he said detainees are still only being tested when they show symptoms. He said ICE is working to expand testing now that it has become more widely available, but that lack of testing was a constraint early in the pandemic. 

With a Supreme Court ruling imminent on the Trump administration’s ability to wind down the Deferred Action for Childhood Arrivals, or DACA, program, Lucero told Senator Dick Durbin, D-Ill., there are currently no plans for deporting people who currently take advantage of the program. 

Charanya Krishnaswami, advocacy director for the Americas at Amnesty International, said it was clear from the testimony Tuesday that the administration has not put together an adequate testing plan for immigration detention facilities. This has remained so, Krishnaswami said, even as testing capacity has improved around the country.

“They didn’t have a plan to address Covid,” Krishnaswami said in an interview. “And months later they’re still tripping over themselves and admitting that they’re not systematically testing people. That’s just the height of negligence in my view.”   

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