The situation inside the nation’s jails and prisons amid the Covid-19 pandemic has become the stuff of nightmares. Overcrowding, unsanitary conditions, shortages of personal protective equipment (not to mention soap) and restrictions on hygiene products such as hand sanitizer have turned detention facilities into a playground for the virus and a death trap for inmates — many of whom, because of age or pre-existing conditions, are at elevated risk for complications. And the threat extends far beyond the facilities themselves, endangering the families and communities that surround prison guards, nurses and other staff members.
Currently, the nation’s top five Covid-19 hot spots are all correctional facilities, according to data collected by The Times. The number of infected inmates and workers has topped 70,000 — the count doubled between mid-May and mid-June — and there have been at least 627 virus-related deaths.
Even these infection numbers are assumed to be an undercount, since testing for the virus remains inadequate and uneven. New York State has tested only about 3 percent of its 40,000 inmates, and more than 40 percent of those tested were confirmed infected. In Mississippi, Alabama and Illinois, fewer than 2.5 percent of state prison inmates have been checked. Some states, like Texas, have moved to ramp up testing, and their reported cases are soaring. Further complicating the count, some facilities do not make their testing numbers public.
Inmates are scared and desperate, and tensions occasionally boil over. In April, more than 100 inmates at a prison in Washington State protested after six inmates tested positive for the virus, and a smaller uprising occurred at a Kansas facility after more than two dozen inmates and staffers tested positive.
This disaster was not merely foreseeable, it was foreseen — at least at the federal level. On March 26, with an eye toward easing the strain on the system, Attorney General Bill Barr directed the federal Bureau of Prisons to focus on moving vulnerable inmates out of harm’s way and into home confinement. This would also serve to reduce crowding and the risk of infection for those left behind.
Eight days later, Mr. Barr issued another memo declaring “emergency conditions” at several facilities hit hard by the virus, announcing that an expanded cohort of inmates should be considered for transfer and urging officials to speed up the decarceration effort.
In the three months since Mr. Barr’s original directive, around 4,500 inmates have been moved to home confinement — less than 3 percent of the federal inmate population. Another 500 or so have been granted compassionate release — immediate release based on special circumstances not foreseeable at the time of sentencing — according to the office of Senator Dick Durbin, Democrat of Illinois. In most of those cases, the courts ordered the release over the objections of the Justice Department.
The process has been hamstrung by policy chaos and bureaucratic sluggishness. Among other snafus, the bureau issued new, more generous eligibility guidelines in early April, then apparently rescinded them within days without a coherent explanation. This led to many inmates being cleared to go home and even placed in prerelease quarantine, only to then be informed that their release had been canceled, according to court filings. Even after the bureau moved to clarify its standards, confusion remained about which inmates were prioritized for release.
The situation grew so disturbing that, in late April, Senator Chuck Grassley, the Iowa Republican, and Mr. Durbin asked the inspector general of the Justice Department to look into whether the bureau was “fully and expeditiously” working to move people into home confinement. The inspector general has pledged to issue public reports on many of the senators’ concerns once the inquiry is complete.
The courts have also expressed their dismay. One Federal District Court judge in New York, in ordering the immediate release of an inmate who had been stuck in prerelease limbo, denounced the bureau’s process as “Kafkaesque.” The prison claimed in court that the inmate was in “quarantine” ahead of his release. But the judge noted — and the prison didn’t contest — that the inmate “remains in regular and close contact with other inmates and prison staff. … He lines up with other inmates in proximity in order to receive food and medication multiple times per day. He also shares communal spaces like toilets, sinks, and showers with dozens of other people.” The prisoner was not even housed in a cell by himself; he shared one with another prisoner.
More notably, in response to a class-action suit filed by the American Civil Liberties Union on behalf of four inmates at the Elkton Federal Correctional Institution in Ohio, another federal district judge ordered officials to transfer more than 800 older, at-risk inmates out of the virus-ridden facility through compassionate release, home-confinement or transfer to other facilities. The Department of Justice appealed, and the inmates remain in limbo as the legal fight drags on and the virus continues its rampage inside Elkton.
This week, Mr. Grassley and Mr. Durbin took a small stab at rationalizing the situation with the introduction of the Covid-19 Safer Detention Act. The proposal is modest, mostly aiming to fine-tune existing laws affecting compassionate release and home confinement. It would, however, expand an existing pilot program that moves elderly inmates into home confinement, subject the bureau’s decisions on such transfers to judicial review and establish vulnerability to Covid-19 as a basis for compassionate release for the duration of the pandemic.
Lawmakers are correct that the system cries out for reform. But the current crisis was born of both policy shortcomings and a widespread failure of implementation, not to mention general dysfunction. As detailed in a June report by the Marshall Project, federal prison officials have failed to protect inmates and the staff in numerous ways. (State prison systems have their own share of horror stories.) The bureau has maintained that it’s doing its best in an impossible situation. But closer scrutiny is clearly merited, and perhaps stricter oversight by Congress going forward.
America’s inmates have been sentenced to pay their debt to society. That debt does not include falling victim to a lethal virus because of official incompetence.