With the CARES act being implemented on Friday, I want to make a few observations which I am not hearing about in the advocacy world. I’m also going to re-circulate several recommendations I made over a week ago which can simultaneously be done to alleviate crowding and allow for better social distancing in our federal prisons.
First, I want to make an observation about the BOP statistics on their website.
You know what they say about stats! While underreporting the amount of actual exposures to Covid-19 for the inmate population, the BOP is over inflating the amount of people who have transferred to the community during the past few weeks. Both stats are more of a misrepresentation of the data than outright inaccurate numbers.
If the BOP gets positive test results of several people in a dormitory setting, they stop testing that unit even though others exhibit symptoms. The number they report is the amount of people who “tested positive” not the amount of actual positives at the facility. The other number of 566 (as of 4/7) plus home detention cases is procedurally impossible given the AG’s first memo was March 26, and he only enacted the CARES Act two business days ago. I’m sure there were 566 home detentions in the past few weeks, but that is the commensurate with the average number that occurs routinely given the hundreds of RRC’s and BOP facilities across the country. It is extremely easy to exaggerate this statistic because one phone call to one RRC contract can send dozens of people home who are already who are already past the home detention eligibility date and are participating in the weekend pass system.
Something a bit more interesting is regarding the various models of when the local health care systems collapse given the Covid-19 stress on hospitals and other medical resources. It is my understanding the models are based on variables from census data and the concept that everyone is practicing social distancing. It is impossible to practice distancing in a federal prison especially the minimum camps and low security facilities which are predominately dormitory living. We are even hearing reports as recent as yesterday that when the people come out for recreation, they are allowed to play basketball and soccer in some of the facilities. The BOP has many prison complexes with several thousand inmates in rural areas like Coleman, Florida which has approximately 6,000 people in a rural area. When you add the thousands of people to the model who cannot practice social distancing; systems collapse much earlier than the models indicate. https://www.bop.gov/locations/list.jsp
If I were king, I would order steps that can be taken right now by data mining the existing population through the BOP SENTRY data base which can alleviate overcrowding to allow attempt of the social distancing protocols by the CDC/WHO.
1) The first order I would give is to run a computer generated list of every person who has been previously been denied compassionate release. While the BOP previously considered only those who were/are “terminally ill”; the legal standard of “compelling and extraordinary” is what is needed in this time of crisis. There are probably hundreds of PEOPLE who have been denied Compassionate Release by the BOP who have approved release plans. Many of these denials are occupying needed beds in Federal Medical Centers and are not a danger to their communities. Let us not forget, under the “old law” sentence procedures prior to the “tough on crime” era, where people sentenced to Life had 10 year parole eligibility and 30 year mandatory parole. Aside from the Compassionate release denials, a list can also be run of the current “lifers” who are in prison, have served 30 plus years, and are not a public safety risk who should equally be considered for relief under this crisis.
The SENTRY data base can isolate dozens of conditions to obtain lists of people which can be focused on. For instance, you can search the entire BOP population, then limit it to people over age 60, with COPD, with minimum and Low risk and/or security level.
Logistics: While these cases would be farther in the cue as far as processing, they still need a residence, district court approval and able to cover their community medical care costs.
2) Simultaneous, I would run a list of all people in federal prison and residential re-entry centers that are past their “home detention eligibility date”. The BOP was recently chastised by the DOJ-IG who indicated the agency was not utilizing home detention as allowed under their authority.
Logistics: These cases will most likely already have approved release plans so all that is needed is a transfer order if they are in a facility. Cases already in the RRC ordinarily participate in a pass system and can be authorized to go home. A joint effort between the private contracts and the AOUSC for the Federal Location Monitoring Program (FLM) can be utilized.
3) Under the BOP furlough authority, they BOP should immediately consider the warden’s authority to provide an emergency/temporary furlough for 30 days to EVERY inmate in our federal prison camps and Low security facilities to allow space for social distancing and quarantine areas. The furlough conditions can be restricted for them to remain at home. Staff who are not needed at the facility due to the lockdown can perform the telephone monitoring the private contracts currently already do to facilitate home detention for RRC transfers.
4) Consideration should be given to amend the law for home detention to be considers a temporary community penal facility so ALL incarcerated people can be considered to “transfer” to such as setting under 18 USC 3621, based on their risk level. Every person with “community” custody should immediately be approved for such transfer and a list of “out” custody people would be a focus.
(Note: This rule was not added to the furlough policy update when it was distributed but is clear that people with “Out” custody can be considered for furlough. Think of custody as the flawed PATTERN risk assessment. Every person has a security level (Min./Low/Med./high) and a custody level (Max/IN/OUT/Community). (See attached bullet points from the furlough policy-below) Not only is PATTERN discriminatory, AG Bar limited the discretion in his 3/26 memo to only “minimum” risk. What most people do not know is that while the BOP scored everyone’s risk level prior to January 15, 2020, the PATTERN data was changed so the current risk levels of the population are no longer accurate unless the person has been rescored since that date.
5) Guidance should be given from the AOUSC to have all district courts consider a general order to immediately delay all voluntary surrenders for 60 days if that is legally possible.
Below is information cut and pasted from the BOP furlough policy:
Furloughs will be granted to eligible inmates to achieve specific correctional goals.
In an emergency, staff contact the pretrial inmate’s attorney of record, who may seek from the court a decision concerning release from custody or an escorted trip, pursuant to 28 CFR part 551, Subpart J.
(1) Emergency furlough– A furlough allowing an inmate to address a family crisis or other urgent situation as noted below at § 570.33(b).
(2) Overnight furlough – A furlough which falls outside the criteria of a day furlough. Ordinarily, the length of an overnight furlough is 3 to 7 calendar days. This time frame may only be extended for specific medical, educational, or vocational reasons per 18 U.S.C. § 3622 and § 4082.
§ 570.33 Justification for furlough. The Warden or designee may authorize a furlough, for 30 calendar days or less, for an inmate to:
d. Social Furlough. A social furlough is defined as a day or overnight furlough used primarily for purposes listed in Section 4.(b)-(e). The type of “social” furlough (i.e., release planning, family and community ties, religious, educational, recreational, civic, or crisis)
(b) Be present during a crisis in the immediate family, or in other urgent situations; Immediate family includes mother, father, stepparents, foster parents, brothers and sisters, spouse, and children. These relationships must be verified by the Presentence Report or other administratively acceptable documentation.
The Warden refers a request for a furlough in other situations through the Regional Director to the Assistant Director, Correctional Programs Division, for approval.
Staff at a contract facility may approve a furlough for a sentenced inmate housed there as specified in that facility’s contractual agreement with the Bureau. (Jack Note: This is interesting to me because contracts could furlough the current inmates to make room for facility transfers)
Numerous times in my career, I processed emergency furloughs for events such as bed side visits for critically ill immediate family members and funerals. For example, religious people of the Jewish faith had strict funeral rituals and we were able to someone out within one business day of processing. There is a verification and recommendation which needs to be done with the US Probation Department that we processed via Fax/email, then a simple furlough application which needed to be signed by the warden.
While this is a bit outside the box, the beauty of it is that it is far more streamlined process than the processing of a home detention referral plus, technically, there is no requirement for electronic monitoring equipment.
There are cases that will require more layered processing for cases with victim witness program notification and sometimes a threat assessment for cases that re referred to as “Central Inmate Monitoring” mainly separation cases but these two aspects are also involved with home detention processing.