Roughly 50,000 inmates at federal prisons meet criteria for release to home confinement based on guidelines in the CARES Act, and the Department of Justice Bureau of Prisons has largely failed to act, according to those who work with the incarcerated.
“We’re trying to get the Bureau of Prisons to follow through on its stated policy to move people to home confinement. As far as we can tell, they’re not,” said David Patton, executive director of the Federal Defenders of New York and a former trial attorney in Manhattan.
Prisoner advocates fear that failure to allow more people to serve at home and reduce the vast number of people confined closely together will cause the pandemic to sweep through the prisons.
Three weeks ago, Attorney General William Barr issued guidance instructing the more than 120 federal prison facilities nationwide to identify “at risk inmates who are non-violent and pose minimal likelihood of recidivism.” Inmates were not required to apply. The memo instructed wardens to identify and move to home confinement those they saw fit while considering an inmate’s prison conduct and re-entry plan. One week later, Barr called on wardens to “move with dispatch in using home confinement,” citing “significant levels of infection” at several facilities.
As of Friday, the Bureau of Prisons has moved 1,252 inmates to home confinement since March 26. Approximately 3,400 inmates were on home confinement on April 5. However, officials tracking those cases said that number ought to be significantly higher.
“They have not been clear at all about how they’re using the transfer authority,” said Patton, who added that the two pretrial federal detention centers in Manhattan and Brooklyn have not transferred anyone in three weeks.
Patton believes 50,000 to 60,000 federal inmates fit the age or preexisting medical conditions provisions. Mike Lawlor, the former undersecretary for criminal justice policy and planning in the Connecticut governor’s office who currently teaches criminal justice at the University of New Haven, agreed that one-third of the approximate 144,000 federal prisoners nationwide are candidates for transfer to home confinement. Nkechi Taifa, who leads the Justice Roundtable, a coalition of 100 organizations advocating for criminal justice reform, said “thousands” should be sent home “so that there is some type of ability at the minimum to engage in the protocol that the CDC has dictated for everyone else.”
Taifa said the lack of releases makes following the Centers for Disease Control and Prevention call for the public to maintain 6 feet of distance from others a “farce” in prison dormitories that are still packed with men and women double-bunked and triple-bunked in community rooms. Kevin Kempf, executive director of the Correctional Leaders Association, an organization of state prison directors from across the country that is in communication with federal prison system officials, said prisons may have 500 to 600 beds and 20 for solitary confinement, which makes it impossible to separate large numbers of sick.
“You’re in a confined space where the social distancing is impossible,” said Patton, adding up to 50 people share a bathroom and eat together.
Research from the Public Policy Initiative states incarcerated people historically are more susceptible to infections and viruses, making closed quarters even more dangerous.
“The incarcerated and justice-involved populations contain hundreds of thousands of people who may be particularly vulnerable to COVID-19, including those with lung disease, asthma, serious heart conditions, diabetes, renal or liver disease, and with other immunocompromising conditions,” Prison Policy Initiative Executive Director Peter Wagner and Research Analyst Emily Widra wrote in a recent post.
Amy Ralston Povah is a federal inmate-turned-advocate who was granted clemency during the Clinton administration following a nonviolent drug offense conviction. After being released, she started the CAN-DO Foundation, to bring Clemency for All Nonviolent Drug Offenders. She now assists inmates who meet the Barr guidance with getting their names on candidate lists and spouted off a handful of names of people in their 70s and 80s, who she said were told they fit the criteria and would be released in mid to late April.
“No sooner do we get excited than it seems to be this boomerang, where they’re slow-playing it well after the 14-day quarantine that was the contingent. Now, the quarantine is they’re going to keep people until May 18. That’s for everyone,” said Povah. “It just seems now they’re getting played. Nothing is moving,” she said. “Some … people had their home confinement plan approved and were on a list, and it was imminent,” but nothing happened.
Povah said other inmates are being released but had already been slated for early release, while some inmates are telling her they cannot find a list to get on.
The Bureau of Prisons provided data on those it has moved to home confinement but did not respond to criticism that too few people are being transferred to home confinement. The bureau’s website states cleaning supplies and face masks are available to inmates daily, though their use is not mandated.
Nearly 144,000 inmates are being held nationwide and another 11,000 in halfway houses. Of those numbers, 473 inmates at 50 facilities have tested positive for the coronavirus, 64 have recovered, and 18 have died, according to BOP.
