We’ll see many more covid-19 deaths in prisons if Barr and Congress don’t act now
By Lisa Freeland, David Patton and Jon Sands
April 6, 2020 at 4:08 p.m. EDT
Lisa B. Freeland is the federal public defender for the Western District of Pennsylvania and co-chair of the Defender Services Advisory Group to the United States courts. David Patton is executive director and attorney in chief of the Federal Defenders of New York. Jon M. Sands is the federal public defender for the District of Arizona. Patton and Sands are co-chairs of the Federal Public & Community Defenders Legislative Committee.
Patrick Jones had served 13 years of a 27-year sentence for a low-level, nonviolent drug offense when he died from covid-19 on March 28. He was the first person in the custody of the Federal Bureau of Prisons to be killed by the pandemic, but within days seven more people had died. Their deaths were entirely preventable, and many more will follow if responsible public officials do not act now.
The numbers of covid-19 cases in the Bureau of Prisons are rising exponentially, at a pace far surpassing the U.S. population at large. On March 20, the bureau’s website reported just two covid-19-positive inmates and staff; two weeks later, it reported 174 confirmed cases. That’s an increase of 8,600 percent, a much steeper rate of increase than has been recorded among the general population. And because testing has been grossly insufficient, these numbers are almost certainly an undercount.
As federal public and community defenders, we represent the majority of those charged with federal crimes. We are witnessing the public health crisis firsthand. Many of our clients fall into the category of people the Centers for Disease Control and Prevention deemed particularly vulnerable to covid-19: More than 10,000 people in federal custody are 60 or older, and 45 percent of the Bureau of Prisons’ population have multiple chronic conditions. These people are far more likely to contract covid-19 in overcrowded and unsanitary prisons than in the community at large. Most of them were convicted of nonviolent offenses. They must be safely released under public health protocols, some even temporarily, to spare them a high risk of death.
It is too late for the crisis to be entirely averted, but the worst can be prevented if Congress and Attorney General William P. Barr act with urgency. So far, however, Barr and federal prosecutors have opposed even modest efforts to reduce the prison population. In courtrooms across the country, when lawyers seek bail or compassionate release for vulnerable people accused or convicted of nonviolent offenses, federal prosecutors have vigorously opposed the requests — even in cases where people’s sentences are near completion. In nearly every case, prosecutors are making the same argument that Barr advanced in a recent statement: that inmates are safer in prison than they would be at home.
It is an absurd claim, contradicted by science and fact. The CDC’s guidance is unequivocal: Social distancing, hand-washing and cleanliness are key to reducing spread of the coronavirus. Numerous credible public-health experts have observed that overcrowded prisons with communal living; shared toilets, showers, and sinks; poor sanitation; and wholly inadequate medical care would allow covid-19 to sweep through the prison population far more quickly than the general public — with devastating consequences.
The attorney general has the authority to rapidly transfer vulnerable people to home confinement; Congress expressly equipped Barr to use this authority broadly with passage of the Cares Act. But for reasons we cannot fathom, he failed to immediately use this lifesaving authority. On March 26, Barr issued a policy that purported to expand the use of home confinement but, rather than helping to release people, erected new hurdles to transferring our clients to safety. On April 3, he issued a memorandum full of mixed messages. Although he directed the Bureau of Prisons to act “with dispatch” to increase the use of home confinement, he named only three prisons and “others similarly affected” as deserving priority. He still does not seem to get it: Every prison and jail requires immediate attention. Altogether, Barr’s guidance has been muddled and arbitrary, bearing little connection to the enormity of the crisis or threat to public safety.
Because Barr is obstructing reasonable efforts to release vulnerable people, Congress must act. Three simple, temporary provisions that could be set to expire after the covid-19 emergency passes would do enormous good. First, bail should be presumed for anyone awaiting trial or sentencing absent credible evidence that the person poses a specific threat of violence. Second, for anyone already sentenced, judges should consider temporary release for the duration of the public health emergency. Third, vulnerable people seeking court-ordered compassionate release should not be subject to Bureau of Prisons administrative hurdles.
More people in prison means more people infected overall. And when incarcerated people need ventilators and other lifesaving equipment, they will be sent to community hospitals, further taxing an already overburdened health-care system. Action now to reduce prison and jail populations would save the lives of incarcerated individuals, prison and jail staff, and people in the broader community.