This is the first part of a federal prison investigation related to secrecy, facility conditions, and delays in releasing inmates related to COVID-19. The next installment will publish June 3.
Defying court orders and a directive from the highest law-enforcement officer in the land, federal prisons have been delaying the release of inmates presumed suitable to serve in home confinement during the coronavirus pandemic, according to hundreds of pages of court records.
At one low-security prison in Ohio, more inmates have died of COVID-19 than have been released early because of the coronavirus crisis, the records show.
One federal judge said prison officials are “thumbing their nose” at the early-release efforts designed to get certain inmates out from behind bars in order to curtail coronavirus infections and deaths in federal prisons.
As of Sunday, the U.S. Bureau of Prisons (BOP) had released 3,544 inmates to home confinement since U.S. Attorney General William Barr, head of the U.S. Department of Justice, announced the first directive on releasing inmates related to COVID-19.
That’s just 2 percent of the federal prison population in 122 public and private prisons around the country.
The BOP has been secretive about who is getting out, keeping the public in the dark.
Celebrity inmates such as President Donald Trump’s associates Paul Manafort and Michael Cohen recently were released early from federal prisons to home confinement due to COVID-19 concerns, after serving less than half their sentences.
But who else gets out isn’t made public by the Bureau of Prisons.
The BOP reviews a variety of factors in releasing inmates, including the age of prisoners, the crimes involved and inmate conduct in prison.
Inmates in home confinement remain in BOP custody and serve their complete sentences, and they’ve been quarantined prior to leaving federal prison.
Prison officials shouldn’t release inmates to home confinement “when doing so is likely to increase their risk of contracting COVID-19,” Barr wrote in his March 26 memo.
“While we have an obligation to protect BOP personnel and the people in BOP custody, we also have an obligation to protect the public,” Barr wrote. “That means we cannot take any risk of transferring inmates to home confinement that will contribute to the spread of COVID-19, or put the public at risk in other ways.”
But at least two federal judges and Orlando Congresswoman Val Demings – a former Orlando police chief – have lambasted officials with the BOP for failing to release hundreds of medically vulnerable inmates who pose little risk to the public, as was authorized by Congress in the Coronavirus Aid, Relief and Economic Security (CARES) Act and ordered by Barr in memos to the Bureau of Prisons on March 26 and April 3.
“Congress has been clear on this: Prison authorities need to stop the delays and swiftly determine who can be released safely,” Rep. Demings told the Florida Phoenix. “This is a vital step to ensure justice for incarcerated individuals and to protect Americans during this pandemic.”
Demings said all inmates deserve to be treated as well as Manafort and Cohen – but they aren’t.
Despite secrecy on the part of prison officials, the Florida Phoenix has been able to glean prison information from court records in lawsuits filed on behalf of inmates.
Lawyers go to court to compel BOP to release inmates
The American Civil Liberties Union, Ohio Justice and Policy Center, Quinnipiac University School of Law, Yale Law School, and other legal entities have filed lawsuits on behalf of federal inmates to compel the Bureau of Prisons to use its expanded authority granted by Congress.
Since Barr issued the first order two months ago, 67 federal inmates had died from COVID-19 through Sunday, including 17 at three prisons Barr initially prioritized due to early outbreaks there, according to BOP’s limited public data.
One of the initial priorities was Elkton Federal Correctional Institution (FCI), a low-security prison in Lisbon, Ohio, where coronavirus erupted early.
The prison granted early release to only six of its 2,300 inmates through May 8, court records show. Nine inmates there have died of COVID-19.
The American Civil Liberties Union of Ohio and the Ohio Justice and Policy Center sued Elkton FCI on April 13 on behalf of four medically vulnerable inmates – three women and one man – to force it to release or otherwise transfer hundreds of inmates presumed eligible under federal authorization for release to home confinement, compassionate release, furlough, or transfer to a safer facility.
Testing at Elkton was slow to start and has been sparse, court records say, but a federal judge saw enough infections in the limited test results to assert that Elkton authorities are “thumbing their nose” at the authority granted them to reduce sickness and death in the highly infected, low-security prison.
“Respondents [Elkton prison authorities] have made only minimal effort to get at-risk inmates out of harm’s way,” wrote U.S. District Judge James Gwin in a May 19 ruling ordering Elkton to expedite the release or transfer of at least 837 inmates.
“By thumbing their nose at their authority to authorize home confinement,” Gwin wrote,”[the prison officials] threaten staff and they threaten low-security inmates.”
Elkton incarcerates more than 2,300 men. Only 524 coronavirus tests were administered through May 19, Gwin wrote, describing the pace this way: “The tests’ progress creeps.”
“To date, the test results show how ineffective respondents have been at stopping the spread,” Gwin says in his order. “Despite the obvious need for rapid implementation of mass testing across the entire institution, they are only conducting tests on Mondays and Tuesdays.”
Gwin ordered Elkton authorities to fully utilize their home-confinement authority and to expedite the release or transfer of at least 837 inmates over the age of 65 with health problems, reiterating that all inmates at this prison are predetermined to be low security risks.
The judge ordered the prison to report every 48 hours on inmates it decides to disqualify and precisely why.
Another federal judge orders “full and speedy” efforts to release inmates
Similar results are unfolding at Danbury Federal Correctional Institution in Danbury, Connecticut, another of the three prisons prioritized for inmate releases by Barr. Overall, 88 inmates have tested positive for the virus through Sunday, and one died. Fifty-nine employees had tested positive. The prison incarcerates 985 men in three facilities. It does not report how many coronavirus tests have been performed.
In a lawsuit filed on behalf of four inmates, U.S. District Judge Michael Shea ordered Danbury officials to make “full and speedy use of the home confinement authority” granted by Congress on March 27 through the Coronavirus Assistance and Recovery and Economic Stimulus (CARES) Act and cited by Barr in his memos.
Like Gwin’s rulings, Shea’s rulings are critical of prison policies that allow few releases from low-security prisons and thus fail to protect medically vulnerable inmates unable to avoid exposure.
Shea points out that Barr’s memos directed prison authorities throughout the country – but especially at Elkton, Danbury and Oakdale FCI in Oakdale, Louisiana – to “maximize” the use of releases and transfers to reduce illness and death in prisons. In issuing an injunction for the inmates, Shea quoted Barr’s statement, “It is clear that time is of the essence.”
Shea ordered Danbury prison officials to expedite identification and release of inmates eligible for home confinement or for compassionate release.
Something changed – and not for the good
Attorneys for the inmates contend that recent changes in the Bureau of Prisons’ so-called PATTERN matrix for ranking inmates’ suitability for release has worsened the situation, while Congress was trying to improve it.
Factors in the PATTERN matrix include an inmate’s vulnerability to infectious disease, his or her offense, time served, and behavior in prison.
Citing an investigation by ProPublica, court records show that inmates who would have been rated as “minimum” risks and eligible for early release under prior PATTERN criteria are no longer eligible.
“It appears that the BOP has recently changed the cut-off scores for PATTERN. The new cut-offs dramatically reduce the range of scores that result in a ‘minimum’ risk level, which was previously a prerequisite for home confinement,” according to records filed Thursday in the Danbury lawsuit.
The filing says: “The Bureau of Prisons has not explained why the cut-offs were changed and … has not published the new cut-offs to the public.”
It is not in the nature of prisons to let criminals go before they complete their sentences, said Kevin Ring, executive director of Families Against Mandatory Minimums, a national prison reform advocacy group.
A former white-collar inmate, Ring served 20 months in a federal prison on public corruption charges related to the Jack Abramoff lobbyist scandal.
“The culture of the Bureau of Prisons is not one to let people get out early,” Ring said in an interview. “At the federal level, the government has all the authority it needs to get people out of harm’s way, it just hasn’t displayed the will to do so.”