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Statement

Letter to AG Barr: Expand the BOP’s Response to COVID-19 and Help States Safely Reduce their Prison Populations

The Brennan Center and a broad coalition of allies across the political spectrum submitted a letter to Attorney General Barr urging the Department of Justice to expand the Bureau of Prison’s response to COVID-19 and help states reduce their prison populations in response to the pandemic.

Published: April 15, 2020

Re: Expanding BOP’s Response to the Novel Coronavirus, and Helping States Safely Reduce their Prison Populations

April 16, 2020

Dear Attor­ney General Barr:

We write to ask that the Depart­ment of Justice (“DOJ”) take a lead­er­ship role in help­ing the nation’s crim­inal justice systems adapt to the chal­lenges presen­ted by the novel coronavirus.

Amer­ica’s pris­ons and jails present unique health dangers, foot­note1_ywaxzw2 1 Michael Massoglia & Brianna Remster, “Link­ages Between Incar­cer­a­tion and Health,” Public Health Reports 134, no. 1 (2019): 8S-14S, https://journ­als.sage­pub.com/doi/epub/10.1177/0033354919826563 (“incar­cer­a­tion is asso­ci­ated with worse health for all formerly incar­cer­ated persons compared with never incar­cer­ated persons”).  and are espe­cially vulner­able to the spread of infec­tious disease foot­note2_8rmangr 2 See, e.g., David Cloud, On Life Support: Public Health in the Age of Mass Incar­cer­a­tion, Vera Insti­tute of Justice, 2014, 12 https://www.vera.org/public­a­tions/on-life-support (noting an example of the rapid spread of drug-resist­ant tuber­cu­losis behind bars).  — prob­lems that the outbreak of the novel coronavirus throw into sharp relief. foot­note3_zphd78p 3 See Daniel A. Gross, “‘It Spreads Like Wild­fire’: The Coronavirus Comes to New York’s Pris­ons,” The New Yorker, March 24, 2020, https://www.newyorker.com/news/news-desk/it-spreads-like-wild­fire-covid-19-comes-to-new-yorks-pris­ons. Absent addi­tional inter­ven­tions, COVID-19 will continue spread­ing through incar­cer­ated popu­la­tions, and our nation’s correc­tional officers and staff, at an alarm­ing rate. foot­note4_xw52aje 4 Lauren-Brooke Eisen, “How Coronavirus Could Affect U.S. Jails and Pris­ons,” Bren­nan Center for Justice, March 13, 2020, https://www.bren­nan­cen­ter.org/our-work/analysis-opin­ion/how-coronavirus-could-affect-us-jails-and-pris­ons.

We thank you for the steps you have taken to respond to this crisis, includ­ing expand­ing the use of home confine­ment by the Bureau of Pris­ons (“BOP”). As you acknow­ledge, the BOP has a “profound oblig­a­tion to protect the health and safety of all inmates” requires noth­ing less. foot­note5_wsxdglh 5 Memor­andum from Attor­ney General William P. Barr to Director of the Federal Bureau of Pris­ons Michael Carva­jal, April 3, 2020, Office of the Attor­ney General, 1, https://www.politico.com/f/?id=00000171–4255-d6b1-a3f1-c6d51b810000. Yet more must be done to stop the spread of the novel coronavirus behind bars. Even if the BOP’s recent lock­down slows trans­mis­sion among people who remain imprisoned in its facil­it­ies, it will also stretch tensions behind bars even further. And, correc­tional admin­is­trat­ors nation­wide face similar pres­sures. foot­note6_t46soqu 6 The BOP ordered a 14-day lock­down on March 31, 2020. Federal Bureau of Pris­ons, “Bureau of Pris­ons COVID-19 Action Plan: Phase Five,” March 31, 2020, https://www.bop.gov/resources/news/pdfs/20200331_press_release_action_plan_5.pdf. As similar meas­ures are imple­men­ted nation­wide, at least one nonvi­ol­ent protest has broken out in a state correc­tional facil­ity, and “signs of stress” are emer­ging else­where. Keri Blakinger, “Coronavirus Restric­tions Stoke Tensions in Lock-Ups Across U.S.,” The Marshall Project, April 2, 2020, https://www.them­arshall­pro­ject.org/2020/04/02/coronavirus-restric­tions-stoke-tensions-in-lock-ups-across-u-s.

We there­fore urge you to take two import­ant steps. First, we ask that you expand the use of home confine­ment even further, as detailed below.

Second, the DOJ can encour­age states to respond more proact­ively to this crisis. We there­fore ask that you circu­late a “Dear Colleague” letter among state crim­inal justice stake­hold­ers — includ­ing governors, prosec­utors, judges, correc­tional admin­is­trat­ors, and public defend­ers — urging them to work together to adopt policies to limit the virus’s impact. Those policies should include (1) releas­ing people from prison who do not pose a public safety threat, thus decreas­ing popu­la­tion dens­ity and viral trans­mis­sion risk; and (2) improv­ing health behind bars by making hygiene products and medical services broadly avail­able. This guid­ance would under­score the federal govern­ment’s commit­ment to zeal­ously confront­ing a threat to the well­being of imprisoned people and those who work in correc­tional insti­tu­tions nation­wide.

We explain both propos­als below. Thank you for your atten­tion to this import­ant matter.

1. The DOJ Should Continue Expand­ing the Use of Home Confine­ment.

First, we urge you to use your author­ity under the CARES Act to its maximum effect. Under ordin­ary circum­stances, the BOP can trans­fer people to home confine­ment for “10 percent of the term of impris­on­ment,” or six months — whichever is shorter. foot­note7_ixj581e 7 18 U.S.C. § 3624(c)(2). The CARES Act provides for a signi­fic­ant expan­sion of this author­ity if the Attor­ney General concludes that “emer­gency condi­tions will mater­i­ally affect the func­tion­ing of” the prison system. foot­note8_nt302qo 8 Coronavirus Aid, Relief, and Economic Secur­ity Act, Pub. L. No. 116–136, § 12003(a)(2), (b)(2), 134 Stat. 281, 515–16 (2020).

Your April 3rd memor­andum makes that find­ing and broadens home confine­ment eligib­il­ity to include “all at-risk inmates,” start­ing with those in facil­it­ies hit hard­est by the virus. foot­note9_f11k­tjk 9 Barr April 3 memor­andum, 2. But the memor­andum recom­mends that trans­fer decisions continue to be “guided by” the factors listed in your March 26th memor­andum foot­note10_ryr8bui 10 Barr April 3 memor­andum, 2. For the criteria them­selves, see Memor­andum from Attor­ney General William P. Barr to Director of the Federal Bureau of Pris­ons Michael Carva­jal, March 26, 2020, Office of the Attor­ney General, 1–2, https://www.politico.com/f/?id=00000171–1826-d4a1-ad77-fda671420000.  Several criteria from that earlier memor­andum could unne­ces­sar­ily limit the reach of the newly expan­ded home confine­ment author­ity. foot­note11_p2dn­w23 11 Defense attor­neys have described at length other recom­men­ded changes to these criteria. Letter from David Patton et al. to Attor­ney General William P. Barr, April 1, 2020, https://www.fd.org/sites/default/files/covid19/other_resources/defender_letter_ag_barr_re_covid-19_4–1–20.pdf; Letter from David Patton et al. to Attor­ney General William P. Barr, March 19, 2020, https://senten­cing.type­pad.com/files/20200319—­let­ter-to-ag-barr-et-al.-re-covid-19.pdf.  We there­fore urge you to revisit and revise March 26th guid­ance as follows: foot­note12_bdsr­zic 12 Some have already noted, correctly, that leav­ing the March 26th guid­ance in place sends “mixed messages” to BOP admin­is­trat­ors. Lisa Free­land et al., “We’ll See Many More Covid-19 Deaths in Prison if Barr and Congress Don’t Act Now,” Wash­ing­ton Post, April 6, 2020, https://www.wash­ing­ton­post.com/opin­ions/2020/04/06/covid-19s-threat-pris­ons-argues-releas­ing-at-risk-offend­ers.

We also ask that you move quickly to address seri­ous imple­ment­a­tion issues in the newly expan­ded home confine­ment program. Reports from family members describe people having their trans­fers revoked at the last moment, and healthy people being quar­ant­ined in the same unit as those suspec­ted of having COVID-19. foot­note16_lluj5x2 16 Josh Gerstein, “U.S. Pris­ons’ Virus-Related Release Policies Prompt Confu­sion,” Politico, Apr. 10, 2020, https://www.politico.com/news/2020/04/10/us-pris­ons-virus-related-release-policies-prompt-confu­sion-178691.

Lastly, it is well estab­lished that recidiv­ism drops sharply with age — and the BOP should bear this fact in mind when making release decisions about the more than 10,000 people in federal prison who are over the age of 61. foot­note17_tns2nq4 17 The U.S. Senten­cing Commis­sion found that “offend­ers over sixty years old at the time of release had a recidiv­ism rate of 16.0 percent,” sharply lower than the general popu­la­tion. Recidiv­ism Among Federal Offend­ers: A Compre­hens­ive Over­view, U.S. Senten­cing Commis­sion, 2016, 5, 23 & n.56, https://www.ussc.gov/research/research-reports/recidiv­ism-among-federal-offend­ers-compre­hens­ive-over­view. For the number of vulner­able people behind bars, see Nathan James & Michael A. Foster, Federal Pris­on­ers and COVID-19: Back­ground and Author­it­ies to Grant Release, Congres­sional Research Service, Report. No. R46297, 2020, 4, https://crsre­ports.congress.gov/product/pdf/R/R46297.  The BOP could consider estab­lish­ing a presump­tion of trans­fer for people of advanced age who, for whatever reason, do not qual­ify for other programs (such as compas­sion­ate release).

2. The DOJ Should Encour­age Crim­inal Justice Stake­hold­ers to Safely Reduce their Prison Popu­la­tions and Improve Hygiene Behind Bars.

Next, we ask that you circu­late a “Dear Colleague” letter to key state poli­cy­makers, offer­ing guid­ance and best prac­tices on how to safely reduce state prison popu­la­tions and improve prison hygiene. Recip­i­ents should include, but need not be limited to, governors, proba­tion and parole offi­cials, state chief judges, attor­neys general, prosec­ut­ing attor­neys, correc­tional admin­is­trat­ors, and public defend­ers. Consist­ent with DOJ policy, this letter would be limited to offer­ing “non-bind­ing advice on tech­nical issues” and express the DOJ’s commit­ment to safe­guard­ing the safety and civil rights of imprisoned people and those who work in correc­tional facil­it­ies. foot­note18_w0c9zmu 18 DOJ policy forbids issu­ing guid­ance docu­ments that impose affirm­at­ive legal oblig­a­tions or serve “as a substi­tute for rule­mak­ing,” but expressly permits the issu­ance of tech­nical guid­ance such as the letter envi­sioned here. See Memor­andum from Attor­ney General Jeff Sessions to All Compon­ents, Novem­ber 16, 2017, Office of the Attor­ney General https://www.justice.gov/opa/press-release/file/1012271/down­load. Stat­utes reflect­ing the DOJ’s mandate to safe­guard the safety and civil rights of imprisoned people include, but are not limited to, the Civil Rights of Insti­tu­tion­al­ized Persons Act of 1980. See 42 U.S.C. § 1997a.

The health chal­lenges faced by the BOP are not unique to federal pris­ons. Fortu­nately, several states have already risen to the occa­sion, taking steps that range from a tempor­ary halt on prison commit­ments to early releases. foot­note19_kb9p­ddb 19 See “Redu­cing Jail and Prison Popu­la­tions During the Covid-19 Pandemic,” Bren­nan Center for Justice, March 27, 2020, last modi­fied April 1, 2020, https://www.bren­nan­cen­ter.org/our-work/research-reports/redu­cing-jail-and-prison-popu­la­tions-during-covid-19-pandemic.  Draw­ing on these examples, your letter could encour­age state decision makers to take the follow­ing steps:

Expand compas­sion­ate release programs.

Like the federal system, many states provide oppor­tun­it­ies for people who are sick or older to be released from incar­cer­a­tion early. foot­note20_82irzd9 20 For more on federal early release programs, see James & Foster, Federal Pris­on­ers and COVID-19, 10–13.  The author­ity to grant such “compas­sion­ate release” varies widely by state. While some are leni­ent, others require people to meet a relat­ively narrow set of criteria. foot­note21_3xqb3tw 21 See Mary Price, Compas­sion­ate Release in the States, FAMM Found­a­tion, 2018, 13, 17, https://famm.org/our-work/compas­sion­ate-release/every­where-and-nowhere.  We ask that you encour­age state decision  makers to, wherever possible, work together to cut through the “red tape” limit­ing compas­sion­ate release in their juris­dic­tions, and ensure that this relief is offered as broadly as possible under state law. Admin­is­trat­ors should focus on releas­ing people who are espe­cially vulner­able to COVID-19 due to their age or preex­ist­ing health condi­tions.

Release people near­ing the end of their sentence.

Research indic­ates that many prison sentences are longer than neces­sary to achieve public safety goals. foot­note22_dpiyca9 22 See Lauren-Brooke Eisen et al, How Many Amer­ic­ans Are Unne­ces­sar­ily Incar­cer­ated?, Bren­nan Center for Justice, 2016, 8, 35–41, https://www.bren­nan­cen­ter.org/our-work/research-reports/how-many-amer­ic­ans-are-unne­ces­sar­ily-incar­cer­ated.  Even under the best condi­tions, the final months or even years of impris­on­ment may not serve any legit­im­ate deterrent or punit­ive purpose. With the outbreak of COVID-19, the dimin­ish­ing marginal bene­fits of those final months of impris­on­ment must be contras­ted with the increas­ing risks asso­ci­ated with prolonged incar­cer­a­tion. Every day behind bars means another day of elev­ated expos­ure to a poten­tially deadly disease.

Acknow­ledging that new calcu­lus, we ask that you advise state poli­cy­makers to use every avail­able policy tool to cut short prison sentences that are already near­ing their end. Depend­ing on state and local law, author­it­ies may be able to accom­plish this goal by expand­ing merit-time cred­its or accel­er­at­ing parole hear­ings. Your letter should specific­ally encour­age author­it­ies to think creat­ively about their legis­lat­ive and regu­lat­ory options. Cooper­a­tion across agen­cies may enable people to more aggress­ively confront this crisis.

Work with prosec­utors to delay prison commit­ments.

We note that the DOJ recently changed its pretrial deten­tion policy, encour­aging federal prosec­utors to “consider the medical risks asso­ci­ated with indi­vidu­als being remanded into federal custody during the COVID-19 pandemic,” and “consider not seek­ing [pretrial] deten­tion to the same degree we would under normal circum­stances.” This step will help people avoid the elev­ated infec­tion risk asso­ci­ated with incar­cer­a­tion. foot­note23_e7qwz3y 23 Memor­andum from Attor­ney General William P. Barr to All Heads of Depart­ments and All United States Attor­neys, April 6, 2020, Office of the Attor­ney General, 2 https://www.justice.gov/file/1266901/down­load. We urge you to recom­mend that states adopt similar guidelines.

Many people who have been convicted of crimes but not yet sentenced remain in the community or detained in a local jail. Depend­ing on state law, correc­tional admin­is­trat­ors may be able to suspend new prison commit­ments on their own author­ity, keep­ing these people out of the prison system for the dura­tion of the pandemic. foot­note24_iuhnqh7 24 See Emmanuel Camarillo, “Illinois Pris­ons Halt Admis­sions from County Jails to Slow Spread of Coronavirus,” Chicago Sun-Times, March 26, 2020, https://chicago.suntimes.com/2020/3/26/21196581/illinois-pris­ons-coronavirus-halt-admis­sions.  But even if they lack the author­ity to take this step on their own, state prison admin­is­trat­ors could work with judges, defense attor­neys, and prosec­utors to delay senten­cing proceed­ings, effect­ively post­pon­ing rather than forfeit­ing the right to seek a prison sentence. State prosec­utors could also be encour­aged to agree to motions seek­ing release from jail pending senten­cing, and work with judges to set appro­pri­ate release condi­tions for people receiv­ing such relief. foot­note25_epzp32w 25 See, e.g., N.Y. Crim. Proc. L. § 530.45(1) (permit­ting judges to, upon applic­a­tion of the defend­ant, set less restrict­ive release condi­tions “before senten­cing” in certain cases and for certain offenses); Me. Stat. tit. 15, § 1051(1) (permit­ting someone convicted of a crime to apply for bail “pending impos­i­tion of sentence”).

In cooper­a­tion with private vendors, waive commis­sary charges for hygiene products, waive fees for phone calls and other forms of commu­nic­a­tion, and suspend copays for medical services for the dura­tion of the crisis.

For many people behind bars, soap and hand sanit­izers are unavail­able, or are luxur­ies that they simply cannot afford, placing the entire prison system at greater risk of infec­tion. foot­note26_0ur7lky 26 Conor Frieder­sdorf, “Can’t We at Least Give Pris­on­ers Soap?,” The Atlantic, April 1, 2020, https://www.theat­lantic.com/ideas/archive/2020/04/make-soap-free-pris­ons/609202/; Eisen, “How Coronavirus Could Affect U.S. Jails and Pris­ons”; Keri Blakinger & Beth Schwartza­p­fel, “When Purell is Contra­band, How Do You Contain Coronavirus?,” The Marshall Project, March 6, 2020, https://www.them­arshall­pro­ject.org/2020/03/06/when-purell-is-contra­band-how-do-you-contain-coronavirus. To address this prob­lem, we recom­mend that you urge state correc­tional admin­is­trat­ors to suspend all commis­sary charges related to soap and personal hygiene products for the dura­tion of the pandemic. This policy change can reduce disease trans­mis­sion at very little cost to states. Arizona, Minnesota, and Pennsylvania have already taken similar steps. foot­note27_djjzhph 27 See “Redu­cing Jail and Prison Popu­la­tions During the Covid-19 Pandemic,” Bren­nan Center for Justice, March 27, 2020, last modi­fied April 13, 2020, https://www.bren­nan­cen­ter.org/our-work/research-reports/redu­cing-jail-and-prison-popu­la­tions-during-covid-19-pandemic. Your guid­ance should recom­mend that other states follow their example.

With in-person visit­a­tion canceled across the coun­try, imprisoned people and their famil­ies face incred­ible stress, aggrav­ated by uncer­tainty about safety and health behind bars and the diffi­culty of stay­ing in touch with each other. We there­fore ask that you also encour­age states to, in cooper­a­tion with private vendors, completely suspend charges for mail, phone calls, and video commu­nic­a­tion for the dura­tion of this crisis. Some vendors, such as JPay, have already begun offer­ing specific services at reduced prices. foot­note28_y07r1g3 28 See “CDCR, GTL, JPay Expand Commu­nic­a­tion Access,” Cali­for­nia Depart­ment of Correc­tions and Rehab­il­it­a­tion, last modi­fied March 30, 2020, https://www.cdcr.ca.gov/covid19/cdcr-gtl-jpay-expand-commu­nic­a­tion-access; “PRESS RELEASE: Depart­ment of Correc­tions Nego­ti­ates Free Calls and Reduced Digital Costs for Incar­cer­ated Popu­la­tion,” Wash­ing­ton Depart­ment of Correc­tions, last modi­fied March 20, 2020, https://www.doc.wa.gov/news/2020/03202020p.htm. These are import­ant first steps, but (in many cases) still leave cost barri­ers between famil­ies and their increas­ingly isol­ated loved ones behind bars. Thank­fully, the BOP recently made video visit­a­tion and phone calls free to all people in its custody. foot­note29_xtspano 29 Josh Hendel, “Federal Pris­ons Make Inmate Call­ing, Video Visits Free During Pandemic,” Politico, April 14, 2020, https://www.politico.com/news/2020/04/14/federal-pris­ons-make-inmate-call­ing-free-186383.  We ask that you encour­age states to do the same.

Lastly, state pris­ons must provide free health­care to imprisoned people through­out this crisis. Free medical care will encour­age quick diagnosis and treat­ment and help halt the further spread of infec­tion. Thank­fully, accord­ing to one source, at least forty-seven states now provide free medical care to imprisoned people with COVID-19 symp­toms. foot­note30_0m0o7q6 30 “Responses to the COVID-19 Pandemic,” Prison Policy Initi­at­ive, last modi­fied April 14, 2020, https://www.pris­on­policy.org/virus/virus­response.html. We ask that you urge the remain­ing three states — Delaware, Hawaii, and Nevada — to follow their example.

Some of these recom­mend­a­tions should also be imple­men­ted in the federal system. We have heard that the BOP waived its prohib­i­tion on alco­hol-based hand sanit­izers, but others have repor­ted commis­sary spend­ing caps that inter­fere with purchas­ing hygiene products, limited oppor­tun­it­ies for clean­ing living spaces during the lock­down, and poor access to clean­ing and protect­ive supplies for correc­tional officers and imprisoned people alike. foot­note31_ojne0gj 31 See Sadie Gurman et al., “Coronavirus Puts a Prison Under Siege,” Wall Street Journal, April 6, 2020, https://www.wsj.com/articles/inside-oakdale-prison-our-sentences-have-turned-into-death-sentences-11586191030?mod=sear­chresults&page=1&pos=1.  Such poor condi­tions will surely contrib­ute to the spread of COVID-19.

* * * * *

Over the past month, the Depart­ment of Justice has taken import­ant steps to limit the impact of the novel coronavirus on the health and safety of those held in and work­ing in our correc­tional system. We ask that you continue to adapt to these chal­len­ging circum­stances and lead the nation’s law enforce­ment agen­cies in devel­op­ing their response.

Respect­fully,

Bren­nan Center for Justice at NYU School of Law

Center for Amer­ican Progress

#cut50

FAMM

Freedom­Works

Justice Action Network

National Asso­ci­ation of Crim­inal Defense Lawyers

R Street Insti­tute

End Notes