Looking back at mid-March 2020, it almost seems surreal to envision how much our world was about to change. Before there was even a requirement to wear masks, airlines stopped flying, restaurants closed, offices closed, mass transit came to a stop and we were all fixed to the television trying to assess what had happened to our lives. However, the Bureau of Prisons (BOP) was planning to continue social visits at all its prisons until it suddenly changed course and cancelled, realizing that the pandemic was real. However, unlike all of the other businesses in the country, and prison is very much a business, there was no way for prison staff and inmates to take the initial, basic step of protection from the spread of COVID-19, social distancing.
The BOP continued to lag in its reaction to COVID-19, mostly claiming that its delayed response was due to the priority the agency must keep to assure dangerous inmates were kept from society. While nobody should believe that prisons are not full of dangerous people, there are many, there is a large percentage who pose no threat to society. There was a plan put in place to move those inmates into home confinement.
Inmates who clearly qualified for transfer to Home Confinement begged for their release when there . [+] was clear policy and documentation to transfer them to home under the CARES Act..
The BOP operates four levels of security institutions; Minimum, Low, Medium and High. The majority of those in federal prison are in Minimum and Low security prisons (51% as of July 20,2021) . over 24,000 are in Minimum camps. Some of those Minimum security inmates work outside of the prison compound, running errands, even taking other Minimum security inmates to bus and train stations for transportation to halfway house or even to another institution to complete their sentence. Inmates who are sick at camps are taken for appointments in community doctor offices, most times dropped off by the same inmate town driver. These are the types of inmates who could have been placed on home confinement but for some reason were not. Clearly there should be an investigation into the BOP’s COVID-19 preventative practices and real-time actions that led to tens of thousands of inmates infected at every BOP institution and 240 dead.
The Office of Inspector General has already conducted investigations into reasons why there were widespread and deadly infections in some institutions. These reports highlighted a lack of BOP medical resources, deficient protocols and understaffed positions which contributed to illness and deaths at FCC Lompoc, FCC Tucson, FCC Butner, FCC Oakdale, FMC Ft. Worth, FCI Terminal Island and FCI Milan. What these reports failed to cover was that the BOP could have moved far more inmates out of harms way by transferring them to home confinement. Most inmates I have talked to had to literally beg to be part of the CARES Act program that led to home confinement.
The BOP has the discretion to allow inmates to serve their sentence at any of its 122 correctional institutions around the country. Once a federal judge imposes a sentence, it is up to the BOP to determine the security level and level of medical care that a person may require during their prison term. The BOP can determine that a person needs a great deal of security and supervision, High, or not much at all, Camp. It can even designate an inmate to home confinement to serve a percentage of their sentence.
MORE FROM FORBES ADVISORHome confinement as a means of incarceration has been around for decades, allowing some inmates, even those who were from High security prisons, to serve a percentage of their prison term on strict conditions while living at home. Prior to COVID-19, this means of confinement was stated to be the last 10% of a person’s sentence or up to 6 months. The national pandemic combined and the then-unfolding tragedy of death and illness at FCI Oakdale (Louisiana), FCI Danbury (Connecticut) and FCI Elkton (Ohio), led Attorney General William Barr to issue a memorandum under the CARES Act in April 2020 to BOP Director Michael Carvajal to declare a state of emergency. This lifted the 6 month or 10% requirement so that there was no limit on the amount of time an inmate could serve their time on home confinement . provided they met certain security requirements. Barr’s directive was clear, “We have to move with dispatch in using home confinement, where appropriate, to move vulnerable inmates out of these institutions.”
The BOP snapped to attention and proceeded to screen inmates, holding town hall meetings and telling many that they would be going home under the CARES Act. Less than two weeks after Barr’s memo, the BOP’ Andre Matevousian, Acting Assistant Director of Correctional Programs, issued an internal memo that put additional guidelines on inmates who could go to home confinement stating that a certain amount of the sentence must have been served (either 25% with less than 18 months remaining or have served over 50% of the sentence imposed). Many inmates were told they were not going home after all and would have to wait. Confused? You can imagine how confused the inmates and families were when they tried to figure out if they even qualified. On the BOP’s own website there is a section for frequently asked questions regarding the CARES Act and even a specific one on “eligibility.” Interestingly enough, the main directive keeping people from qualifying is the Matevousian memo on time served, is missing from the page.
The initiative given by the Attorney General provided a great deal more discretion to BOP case managers to determine who would and would not go home. However, it was not so simple with the Matevousian memo. Men and women inmates began lining up outside of case manager offices and submitting “cop-outs,” requests to staff, to be put on home detention due to underlying conditions. Rejections soon followed and inmates had two choices, appeal the decision through administrative remedies within the BOP and hope to get a CARES Act transfer to home confinement or take their case to federal court asking for compassionate release (a reduction in sentence).
Compassionate Release actions are expensive, requiring lawyers and legal resources to properly file motions in federal court. Such an avenue for relief was reserved for those who had the financial resources to do so. It should be noted that 90% of all inmates in federal prison had court appointed attorneys. Federal defenders took on a small number of egregious cases where the BOP withheld CARES Act transfers but their caseloads were also full of pending criminal cases.
Attorneys, for those inmates who could afford them, began demanding legal calls to assess what could be done to get their clients on home confinement. Phones were ringing and emails pinging from small prison camps, to BOP regional offices, to BOP headquarters in Washington DC saying “let my client go home!” The resource drain of attending to the needs of those would could afford attorneys left those without resources sitting in prison. It made one believe that the purpose of moving people from prison to home detention was more of privilege than need. In reality, the CARES was supposed to be about safety, compassion and need . somewhere along the line, the intent of Barr’s memo has been lost.
The fact is, the BOP maintains an extensive database of the inmates it houses. With a few keystrokes, a case manager can quickly assess security risk, disciplinary records and medical records of any inmate in federal custody. Barr’s memorandum stated nothing about inmates having to apply for the CARES Act, it asked to BOP to evaluate the people who should be transferred. Nothing of the type has happened. Inmates who pled for mercy to be transferred to home confinement initially received reasons for denials (your condition is not recognized by the CDC or you don’t meet the time-served requirement). Now, my sources tell me that BOP staff is no longer acknowledging CARES Act requests and inmates are just being told that their request is denied.
Even the BOP’s count of those on home confinement has been called into question. Prior to BOP Director Michael Carvajal’s embarrassing, and untruthful testimony before both the Senate and House, the BOP disclosed on its website the number of inmates placed on home confinement since March 2020. That number was an impressive, and deceiving, 25,000. However, the BOP was forced to admit that the number included those who would have been on home confinement anyway (6 months or 10% remaining in their sentence) and few of those released under CARES Act. The real CARES Act number was 4,400.
COVID exposed the weaknesses both the weaknesses and strengths in our country. I would put the BOP in the former.