Managing COVID-19 – December BOP Oversight Hearing

On December 2, 2020, the House Judiciary Committee of Crime, Terrorism, and Homeland Security held an Oversight Hearing on the Federal Bureau of Prisons and Marshal’s Service on how they are managing COVID-19. During this hearing, the committee questioned BOP Director Michael Carvajal and USMS Director Donald Washington on the progression of COVID-19 within their institutions.

On December 2, 2020, the House Judiciary Committee of Crime, Terrorism, and Homeland Security held an Oversight Hearing on the Federal Bureau of Prisons and Marshal’s Service on how they are managing COVID-19. During this hearing, the committee questioned BOP Director Michael Carvajal and USMS Director Donald Washington on the progression of COVID-19 within their institutions.

Polarizing Opening Statements

Rep. Karen Bass

Rep. Karen Bass (D) of California emphasized in her opening statement that those in correctional institutions are 5 times more likely than the average citizen to contract COVID-19. Given that the United States incarcerates more people than any other country, managing COVID-19 within the prison population from the virus should rank high on the nation’s priorities. She expressed concerns about the BOP’s utilization of the CARES Act provisions, numerous reports of mishandling of the virus within the institutions, lack of access to testing, high infectivity numbers despite insufficient testing, and continued transfers without notation of COVID-19 status. Rep. Bass also pointed out that the USMS houses many inmates accused, but not convicted, of crimes.

To start the hearing, she asked Dir. Carvajal and Dir. Washington to both outline their plans to mitigate the spread of COVID-19 within the prisons. Additionally, she invited them to outline what resources and support they need from the House.

Rep. Jim Jordan

Following this, Ranking Member Rep. Jim Jordan (R) opened with a statement accusing democrats of using COVID-19 as an excuse to expedite their own criminal justice reform policies and release dangerous criminals back into struggling communities. He said that the policies currently in place by the BOP (limiting visitation and transfers, some releases onto home confinement) appeared more than reasonable. He also stated that further releases would not constitute “responsible policies”. This opening statement foreshadowed the partisan divide over most of this hearing. Throughout the hearing, republican representatives expressed concern over the release of inmates with more serious offenses. Democratic representatives, on the other hand, advocated for widespread home confinement considerations (not immediate releases, as mischaracterized by Rep. Jordan.) These disagreements about the managing of COVID-19 emerged frequently.

Dir. Michael Carvajal

Dir. Carvajal thanked the community for the opportunity to testify on policies which he said are frequently mischaracterized by media coverage. He observed that, since March, the BOP released 18,000 inmates onto home confinement and posited that reduced hospitalization rates amongst inmates serve as evidence of the BOP’s policy effectiveness.

Dir. Donald Washington

Dir. Washington opened by reminding the committee that the USMS bears responsibility for the Strategic National Stockpile of medical materials. The USMS disseminates these materials in the event of a national disaster, such as a pandemic. He also discussed the recent expansion of the Justice for Victims of Trafficking Act that gave the USMS greater authority to recover critically missing children.

Staff Exposure and BOP Transparency in COVID-19 Management

Several senators expressed concern over the managing of COVID-19 with regards to staff exposure. They questioned whether the BOP’s policies were sufficient to protect staff. Rep. Bass asked whether staff has access to testing. Carvajal answered that, although the BOP experienced testing shortages in the early months of the pandemic, the BOP currently has widely available testing. Many staff members, however, do not want to be tested. Rep. Sheila Jackson Lee sought clarification on this point to which Carvajal emphasized that he lacks the authority to mandate testing.

Rep. Bass also inquired whether all staff an inmates are provided with masks and the ability to practice good hygiene which Carvajal confirmed. This contradicts some inmate reports that the institutions do not provide sufficient hand soap. Rep. Madeleine Dean also asked about the consistency of mask-wearing within the facilities. Carvajal confirmed that unannounced inspections of facilities ensured the expectation and enforcement of mask-wearing.

The Case of Robin Grubbs

Rep. Lucy McBath (R) pivoted focus to the BOP’s reporting of COVID-19 numbers. She focused specifically on the case of Robin Grubbs. A BOP staff member awaiting transfer, Grubbs contracted COVID-19 and died. Upon examination, the coroner found no other cause of death in her case. Despite this, the BOP’s website failed to include Grubbs in reported statistics as a COVID-19 fatality. Instances such as this create a level of distrust in the reporting systems of the BOP. Carvajal stated that he simply reports the numbers provided to him and expressed his frustration at even having to discuss this. Despite his purported outrage, he did not address why Robin Grubbs’s death is not recognized by the BOP.

With respect to Robin Grubbs, numerous representatives raised the issue of transparency with regards to the USMS handling of COVID-19 throughout the hearing. Rep. Bass asked whether inmates are tested for COVID-19 before USMS transfers them between facilities. Washington stated that they test a “large number”. Rep. Jackson Lee probed further into this issue. She point-blank asked whether or not Washington has data on who in his custody has been infected, tested, and died. To this, Washington replied that he has some, but that not all institutions uniformly report appropriate data. Upon hearing this, Rep Jackson Lee asked him to commit to finding this data and providing it to the committee so that they can better understand how the USMS is managing COVID-19.

Is the BOP Releasing All They Can?

Implementing Home Confinement and the CARES Act

The committee also disputed Carvajal’s use of the home confinement function under the CARES Act. Since the passage of the CARES Act, the BOP placed 18,000 inmates on home confinement. Under questioning from Rep. Dean, Carvajal clarified that between 50% and 60% of these placements resulted from the CARES Act. The other 40%-50% would have been transferred to home confinement anyways.

Several representatives raised issues over the democratic push for further transfers onto home confinement. Rep. Debbie Lesko and Rep. Steve Chabot asked how Carvajal ensures that those who would be a danger to the community remain imprisoned. He replied that those with violent offenses, sex offenses, terrorism offenses, or detainers aren’t considered for release. Additionally, according to Carvajal, the BOP already placed anyone who meets the criteria set forth by Attorney General Barr on home confinement. When asked by Rep. Chabot how the BOP monitors those on home confinement, Carvajal stated that they monitor the majority of those on home confinement through contract staff via GPS.

Rep. Ted Deutch challenged whether the BOP actually released all eligible inmates, citing the home confinement of Paul Manafort and Michael Cohen – two prominent advocates of the Trump administration. Despite their failure to meet all of the aforementioned home confinement criteria, the BOP granted home confinement to both. Rep. Deutch compared these transfers with two high-risk inmates for whom the BOP denied home confinement. Both later died of COVID-19 while incarcerated. Dir. Carvajal declined involvement in specific cases, stating that his role in managing COVID-19 does not extend to individuals.

Compassionate Release and the BOP’s Penury

Rep. Hakeem Jeffries questioned Dir. Carvajal about the compassionate release statute – another popular vehicle for managing COVID-19 spread within the prisons. Carvajal confirmed that the BOP has authority to introduce and grant compassionate release to eligible inmates. Jeffries noted that, although the courts granted around 2,000 compassionate release cases since the start of the pandemic, the BOP approved only about .1% of requests made by inmates – 11 inmates in total. This points to a large disparity in what the courts deem low-risk and what the BOP deems low-risk. It also continues called into question Carvajal’s claim that the BOP has done all it can to reduce prison populations. “The numbers don’t suggest that you’re actually doing that,” pointed out Rep. Jeffries.

Dir. Carvajal countered that the very involved process for evaluating compassionate release cases can take time and then incorrectly stated that inmates have the option of going directly to court to seek compassionate release. Later, he clarified that there is a mandatory 30-day window after seeking compassionate release from the warden of his or her institution before an inmate can go to court. However, neither Carvajal nor Jeffries commented on the risks associated with an additional 30-day stay in a facility with COVID-19 cases for a high-risk inmate.

Managing COVID-19 While Balancing Public Safety

Several different republican representatives also considered calls for wider release considerations “irresponsible” and that the criteria already in place as a result of the CARES Act should adequately manage COVID-19 spread within the prisons

Rep. Chabot echoed Rep. Jordan’s opening statement, similarly arguing that more widespread releases pose a danger. Likewise, Rep. Lesko read from a letter sent to Attorney General Barr from Rep. Bass and others, which called for the assessment of medically high-risk inmates, regardless of their institution level or offense severity. After this, Rep. Lesko expressed concern about the potential release of inmates with more serious offenses.

In a similar vein, Rep. Jordan argued that in light of the increase in violent crime in major urban areas and reduced funding to police department in a few cities, releasing more inmates into the community would create “crazy” levels of danger. “But that’s what democrats want!” He cried. In doing this, he vastly mischaracterized Rep. Bass’s letter. He also ignored the wording that specifically asked that inmates be assessed for release regardless of their offense and location – not that inmates be released regardless of their offense and location. He continued to speak over Rep. Bass when she pointed this out. “No one on either side of the aisle is calling for the indiscriminate release of prisoners,” Rep. Bass affirmed, and reiterated that the letter called for an extension of considerations to primarily high-risk and terminally ill inmates in an effort to further manage COVID-19 spread to the very vulnerable.

The partisan scuffling continued when Rep. Debbie Mucarsel-Powell subsequently rebutted these conservative claims by posing that republicans, rather than democrats, attempted to subvert the rule of law and will of the people. In this, she referenced the unfounded claims of fraud with respect to the 2020 presidential election.

Various Lines of Questioning

Representatives also raised varying issues related to the BOP and USMS in their individual lines of questioning.

Lawsuits and the Reconfiguration of Housing

Rep. Jackson Lee asked about the ACLU lawsuit against the BOP for failing to reconfigure housing. Carvajal outlined the temporary housing and tents implemented by the BOP after funding. He also touched on the increased social distancing that reduced populations afforded the BOP.

Rehabilitation Efforts in the Age of COVID-19

Rep. Chabot asked about the prison industries program which he cited as an important factor in rehabilitating inmates. Carvajal confirmed that the prison industries have been impacted negatively by COVID-19. Rep. Louis Gohmert also discussed the effects of COVID-19 on rehabilitative programs, specifically the programming efforts to remedy the large number of inmates struggling with drug or alcohol abuse problems. Carvajal said that between 50% and 70% of programming has resumed. Rep. Gohmert also asked how many current inmates are in the country illegally and posited that COVID-19 restrictions at the border caused a decreased percentage of non-U.S. citizens in prisons.

Identification and Deployment

Rep. Mucarsel-Powell examined the deputizing and deployment of BOP personnel to Miami as preemptive crowd control for peaceful protests and the lack of identification on deployed personnel.

Danger Pay for USMS Agents

Differing from most other representatives’ inquiries, Rep. Ben Cline asked Dir. Washington to comment on the effects of COVID-19 on his work recovering missing children and the lack of danger pay available for the USMS as opposed to the DEA and FBI. Washington stated that the department is in need of more staff and that the inability to offer danger pay has an effect on this.

Conclusion

Nearly ten months into the pandemic, the BOP still faces well-founded criticism over the handling of COVID-19. Although the BOP implemented some improvements to prison conditions, the risk to prisoners amidst the pandemic remains prevalent and relevant.

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