Leadership Conference Letter Urging Jail and Prison Population Reduction During COVID-19 Pandemic

View a PDF of this letter here.

February 26, 2021

President Joseph R. Biden, Jr.
The White House
1600 Pennsylvania Avenue NW
Washington D.C. 20050

Dear President Biden,

On behalf of The Leadership Conference on Civil and Human Rights, a coalition charged by its diverse membership of more than 220 national advocacy organizations to promote and protect civil and human rights in the United States, and the 110 undersigned organizations, we urge you to take swift action to protect the health and safety of incarcerated individuals during the COVID-19 pandemic and request a meeting to discuss the issues outlined below in more detail.

While the pandemic jeopardizes everyone’s safety, incarcerated individuals are much more likely to be people with disabilities or to have pre-existing health conditions, making them exceptionally vulnerable due to overcrowding, unsanitary prison conditions, and a lack of access to quality healthcare services.[1] Though the COVID-19 vaccine is a critical advancement, distribution to incarcerated populations will take precious time, and correctional medical experts expect participation rates will be low because the Bureau of Prisons (BOP) has failed to pair vaccine rollout with needed outreach and education. Indeed, BOP has already reported a low adherence rate by staff to the vaccine: a January 15, 2021 BOP press release reported that roughly half of staff had agreed to accept the vaccine.[2] Moreover, the emergence of new strains of the virus that are potentially more contagious and deadly means that the need to protect high-risk individuals remains as urgent as ever.[3] To uphold your campaign commitments to advance racial justice and criminal justice reform and effectively confront COVID-19 during your first 100 days, it is imperative that you use existing authorities to aggressively reduce jail and prison populations.

Although the overall BOP population has dropped, many individuals remain crowded together in institutions that are incapable of delivering adequate medical care in the best of times.[4] The mortality rate among incarcerated individuals is more than twice that of the general population when adjusted for age, sex, and race/ethnicity.[5] Additionally, infection and death rates have been exacerbated due to misguided attempts to mitigate the spread through increased use of solitary confinement in lieu of medical isolation.[6] Individuals in prison are nearly five times more likely to become infected than the general population, and have other risk factors that put them at increased risk of complications.[7] For example, approximately 20 percent of the federal prison population is over age 50[8] and, according to BOP, approximately 45 percent have multiple chronic health conditions.[9] Moreover, historic patterns of over-policing and the overcriminalization of Black and Brown individuals has created a prison population that overrepresents communities of color and exacerbates the disproportionate impact the coronavirus is already having on these communities more broadly.[10] Depopulating prisons to address the coronavirus pandemic is not only a public health issue and a criminal justice issue, but a racial justice issue as well.

As of February 24, 2021, there have been a staggering 47,694 total coronavirus cases among the approximately 125,000 individuals in BOP custody – more than one third of the population – along with more than 6,000 cases among federal correctional facility staff.[11] Moreover, 222 people in federal custody and four staff have died.[12] Courts across the country have noted that BOP has frequently undertreated or ignored COVID-related symptoms,[13] and a lawsuit filed on behalf of individuals incarcerated at North Carolina’s Butner Correctional Complex, which includes a medical center, has alleged that when people have gotten sick with COVID “treatment is almost nonexistent” and hospital transfers do not occur until the time when individuals “are already experiencing respiratory failure.”[14] In failing to provide even the bare minimum of appropriate medical care to one of its most vulnerable populations,[15] the United States is wholeheartedly failing in its duty to maintain safe, secure, and humane detention facilities.

As infections among BOP staff have risen – including by more than 100 percent from November 3 to December 1, 2020 – BOP has increased its use of “augmentation” to fill staffing gaps.[16] This practice reassigns staff from other roles, such as educational or administrative, to correctional officer roles, a process that employees have long contended “sacrifices safety” of incarcerated individuals and staff while also decreasing the provision of maintenance, rehabilitation, or medical care.[17] Now, as the union representing BOP employees has alleged, CDC guidelines are being violated[18] and workplace safety complaints filed with the Occupational Safety and Health Administration have gone largely unaddressed due to cuts in that agency’s workforce.[19]

Public health experts have unequivocally asserted that the only way to stop the spread of the coronavirus in prison settings is to rapidly and sufficiently reduce the number of people in those facilities. While BOP has reduced the federal prison population somewhat this year, that decrease has not provided the level of reduction necessary to make safe those facilities that have been overcrowded for years. Similarly, vaccine distribution is slow and incarcerated people have been deprioritized for vaccinations. Significant resources must be devoted to building trust in both the vaccine and the quality of medical care offered in prison settings, and this, along with distribution itself, will take valuable time that individuals at heightened risk of coronavirus contraction simply do not have.

The Coronavirus Aid, Relief, and Economic Security (CARES) Act expanded BOP’s authority to release individuals to home confinement; however, both BOP and DOJ have failed to effectively exercise that authority. The agencies issued restrictive guidance and memos that severely limited the number of individuals eligible for release and created a “complex set of procedural and logistical hurdles” for incarcerated individuals to overcome. Moreover, during the first three months of the pandemic, BOP approved just 11 of the nearly 11,000 compassionate release petitions filed, and, based on a survey conducted by the Federal Public and Community Defenders, it appears that BOP did not initiate a single motion for compassionate release based on heightened risk of severe illness from a COVID-19 infection.[20] Such a failure by BOP to act is not without measure, as roughly 50 individuals have died in BOP custody after filing – and in some cases even after being granted – requests for release.[21]

But it is not just those in BOP custody who remain at significant risk with no relief in sight. There are currently 63,919 individuals held in custody by the U.S. Marshals Service (USMS) who are awaiting either trial, sentencing, or transfer to BOP facilities.[22] The Department of Justice recently concluded that USMS “had a practice of transporting prisoners without first testing that…may lead to further infections,”[23] and reports abound that those in USMS custody are frequently denied treatment “unless severe symptoms appear, necessit[ating] transfer to an outside facility.”[24] There have been at least 28 deaths of individuals in USMS custody to date.[25]

As such, we believe there are a number of actions you can take immediately to protect incarcerated people:

• Eliminate the ineffective and inhumane use of solitary confinement that has exacerbated the spread of the coronavirus;
• Prioritize the release or transfer of elderly and other vulnerable people from federal custody;
• Implement system-wide access to COVID-19 testing and vaccinations for all correctional staff and people in federal custody, including those in USMS custody;
• Minimize arrests, decline to seek detention of individuals at their initial appearance in court, and consent to the release of those already detained absent clear and convincing evidence that they pose a specific threat of violence to a specific person;
• Eliminate the use of the PATTERN tool as a criterion for consideration of home confinement or compassionate release; and
• Require DOJ’s Bureau of Justice Statistics to meet and exceed its obligations for data collection and reporting in a timely manner, including demographic information on virus infections, deaths, and releases for people in BOP and USMS custody.

Millions of people across the United States have demonstrated that they want a federal government that takes seriously its responsibility to control the pandemic and believes it is far past time to begin addressing the full impact of systemic racism in this country. In your first weeks in office, you have the power to do both by taking strong action to protect the health and safety of incarcerated individuals. By reducing prison and jail populations, and taking the other steps outlined above, your administration can ensure that the most vulnerable among us are not forgotten but rather protected, released, and provided safe reentry during our nation’s public health emergency.

We look forward to discussing these issues with you and Department of Justice officials. Please contact Sakira Cook, Senior Director, Justice Reform Program, The Leadership Conference on Civil and Human Rights, at [email protected]; Patricia Richman, National Sentencing Resource Counsel, Federal Public and Community Defenders, at [email protected]; Aamra Ahmad, Senior Policy Counsel, ACLU, at [email protected]; or Kara Gotsch, Deputy Director, The Sentencing Project, at [email protected] to schedule a convenient time for a meeting.

We look forward to working with your administration to protect those currently incarcerated and those at risk of incarceration in the United States.

Sincerely,

The Leadership Conference on Civil and Human Rights

ACCESS (Arab Community Center for Economic and Social Services)

Advocacy Without Borders

AIDS Alabama

AIDS Foundation Chicago

Alabama State Association of Cooperatives

Alliance for Safety and Justice

Alternate ROOTS

American Association of People with Disabilities

American Civil Liberties Union

American Family Voices

American Friends Service Committee

Americans for Democratic Action (ADA)

Amistad Law Project

Amnesty International of the USA, Inc.

Amnesty International USA

Ananda shanti Yoga Society

Arab American Institute (AAI)

Arkansas United

Autistic Self Advocacy Network

Autistic Women & Nonbinary Network

The Bail Project

Black and Pink Massachusetts

Blue Future

Bread for the World

Brennan Center for Justice at NYU School of Law

Center for Disability Rights

Center for Law and Social Policy (CLASP)

Center on Race, Inequality, and the Law at NYU Law

Charles Hamilton Houston Institute for Race and Justice at Harvard Law School

Church of Scientology National Affairs Office

Church World Service

Civil Rights Corps

Color Of Change

Colorado Freedom Fund

Common Cause

Community Alliance on Prisons

Council on American-Islamic Relations (CAIR)

CURE (Citizens United for Rehabilitation of Errants)

DC Democratic Caucus for Returning Citizens

Defending Rights & Dissent

Director of National Policy

Disability Rights Advocates

Drug Policy Alliance

Ending Criminalization of HIV and Overincarceration In Virginia ECHO VA

Essie Justice Group

FAMM

Federal Public and Community Defenders

Florida Rights Restoration Coalition

Futures Without Violence

Health in Justice Action Lab at Northeastern University

Impact Justice

Incarcerated Relief Resource Center

Innocence Project

Interfaith Action for Human Rights

Jewish Council for Public Affairs

Just Detention International

Just Future Project

Just Futures Law

Justice Roundtable

Katal Center for Equity, Health, and Justice

Kentucky Council of Churches

LatinoJustice PRLDEF

Law Enforcement Action Partnership

Life Unbolted, Inc

Long Island Social Justice Action Network

Muslim Advocates

National Religious Campaign Against Torture

National Action Network

National Association of Criminal Defense Lawyers

National Center for Lesbian Rights

National Council for Incarcerated and Formerly Incarcerated Women and Girls

National Council of Churches of Christ in the USA (NCC)

National Council on Alcoholism and Drug Dependence-Maryland Chapter

National Disability Rights Network (NDRN)

National Employment Law Project

National Equality Action Team (NEAT)

National Hepatitis Corrections Network

National Immigration Project (NIPNLG)

National Juvenile Justice Network

National Organization for Women

National Working Positive Coalition

NETWORK Lobby for Catholic Social Justice

Newhour_Li.org

Open The Government

Operation Restoration

Pennsylvania Immigration and Citizenship Coalition

People For the American Way

Philadelphia Reentry Think Tank

Prison Policy Initiative

Project On Government Oversight

Public Defender Association

Rebuilding Indpendence My Style

Rural Coalition

SaveOurselves Movement for Justice and Democracy

Southern Poverty Law Center

StoptheDrugWar.org

Students for Sensible Drug Policy

T’ruah: The Rabbinic Call for Human Rights

TN State Conference NAACP

The Center for HIV Law and Policy

The Decarceration Collective

The Sentencing Project

The Taifa Group

The United Methodist Church – General Board of Church and Society

Transgender Legal Defense and Education Fund

Tzedek Association

Union for Reform Judaism

Unitarian Universalists for a Just Economic Community

Washington Lawyers’ Committee for Civil Rights and Urban Affairs

WCJA

 

[1] Vallas, Rebecca. Disabled Behind Bars: The Mass Incarceration of People with Disabilities in America’s Jails and Prisons. (July 2016). https://cdn.americanprogress.org/wp-content/uploads/2016/07/18000151/2CriminalJusticeDisability-report.pdf?_ga=2.163727420.2027820979.1614090622-1709328763.1614090622.

[3] Centers for Disease Control and Prevention. About COVID-19 Variants. (February 2021). https://www.cdc.gov/coronavirus/2019-ncov/transmission/variant.html

[4] See, e.g., Honderich, H. and Popat, S. (July 27, 2020). Coronavirus: Can this California prison save itself from Covid-19? BBC NEWS. https://www.bbc.com/news/world-us-canada-53476208; Novak, K. (July 9, 2020). Inmates Say Poor Conditions, Medical Care Continue at San Quentin. KCBS RADIO.

[5]Schnepel, K. COVID-19 in U.S. State and Federal Prisons. National Commission on COVID-19 and Criminal Justice. (Sept. 2020). https://cdn.ymaws.com/counciloncj.org/resource/resmgr/covid_commission/FINAL_Schnepel_Design.pdf

[6]Solitary Confinement is Never the Answer: A Special Report on the COVID-19 Pandemic in Prisons and Jails, the Use of Solitary Confinement, and Best Practices for Saving the Lives of Incarcerated People and Correctional Staff. Unlock the Box. (June 2020). https://static1.squarespace.com/static/5a9446a89d5abbfa67013da7/t/5ee7c4f1860e0d57d0ce8195/1592247570889/June2020Report.pdf

[7] Saloner, B., Parish, K., Ward, J. A., DiLaura, G., & Dolovich, S. (2020). COVID-19 cases and deaths in federal and state prisons. Jama, 324(6), 602-603.

[8] U.S. Department of Justice, Federal Bureau of Prisons. Inmate Age. https://www.bop.gov/about/statistics/statistics_inmate_age.jsp

[9] Dep’t of Justice, Federal Prison System FY 2021 Performance Budget Congressional Submission https://bit.ly/2Y7xDE6 (“Approximately 45 percent of offenders have multiple chronic conditions that, despite management with medications and other therapeutic interventions, will progress and may result in serious complications.”). https://www.bjs.gov/content/pub/pdf/mpsfpji1112.pdf

[10] Reinhart, R. and Chen, D. Incarceration and Its Disseminations: COVID-19 Pandemic Lessons From Chicago’s Cook County Jail. Health Affairs. (June 4, 2020). https://www.healthaffairs.org/doi/full/10.1377/hlthaff.2020.00652?utm_campaign=covid19fasttrack&utm_medium=press&utm_content=reinhart&utm_source=mediaadvisory.

[11] U.S. Department of Justice, Federal Bureau of Prisons. COVID-19 Cases. (February 2021). https://www.bop.gov/coronavirus/index.jsp. There are 1,650 federal inmates and 1,683 BOP staff who have confirmed positive test results for COVID-19 nationwide. Currently, 45,356 inmates and 4,652 staff have recovered. There have been 222 federal inmate deaths and 4 BOP staff member deaths attributed to COVID-19 disease. Of the inmate deaths, 4 occurred while on home confinement.

[12] Id. This number includes deaths in privately-managed prisons, which are reported separately on BOP’s website.

[13] See, e.g., United States v. Cassidy, 17-CR-1165 (W.D.N.Y. May 13,2020); United States v. Cassidy, CRIMINAL ACTION NO. 2:18cr95-MHT (WO) (M.D. Ala. Jun. 4, 2020).

[14] Complaint, Hallinan et al v. Scarantino et al, 5:2020ct03333 (2020).

[15] See, e.g., Department of Justice Office of Inspector General. DOJ IG Releases Report of Remote Inspection of Federal Bureau of Prisons Metropolitan Detention Center Brooklyn Examining the Institution’s Response to the Coronavirus Pandemic (Nov. 10, 2020). https://oig.justice.gov/news/doj-oig-releases-report-remote-inspection-federal-bureau-prisons-metropolitan-detention-center

[16] Katz, E. Federal Prison Employees Fear Staff Shortages and Mass Reassignments as COVID-19 Cases Spike. Government Executive (Dec. 1, 2020). https://www.govexec.com/workforce/2020/12/federal-prison-employees-fear-staff-shortages-and-mass-reassignments-covid-19-cases-spike/170399/

[17] Id.

[18] Blakinger, K. These Federal Prison Guards Are Desperate for Trump to Lose. The Marshall Project. (Nov. 5, 2020) https://www.themarshallproject.org/2020/11/05/these-federal-prison-guards-are-desperate-for-trump-to-lose

[19] Id.

[20] The COVID-19 Crisis in Federal Detention: December 2020. Sentencing Resource Counsel for the Federal Public and Community Defenders (Dec. 1, 2020). https://www.fd.org/sites/default/files/news/sentencing_resource_counsel_fact_sheet-december.pdf

[21]See Alison K. Guernsy, List of Compassionate Release Attempts, Iowa College of Law Federal Defense Clinic (Feb. 17, 2021).

[22] See U.S. Marshals Service-Coronavirus (COVID-19) Data and Information, https://www.usmarshals.gov/coronavirus/stats.html.

[23] See Department of Justice, Office of Inspector General, Review of the United States Marshals Service’s Response to the COVID-19 Pandemic (Feb. 2021), https://oig.justice.gov/sites/default/files/reports/21-034.pdf. See also States v. Cassidy, 17-CR-1165 (W.D.N.Y. May 13,2020); Hamilton, K. and Blakinger, K. ‘Con Air’ Is Spreading COVID-19 All Over the Federal Prison System. The Marshall Project. https://www.themarshallproject.org/2020/08/13/con-air-is-spreading-covid-19-all-over-the-federal-prison-system

[24] Complaint: ACLU Files Class Action Lawsuit Against Butner FCC. American Civil Liberties Union. https://www.aclu.org/legal-document/complaint-aclu-files-class-action-lawsuit-against-butner-fcc

[25] Cantú, A. Federal Prosecutors Hold Protestors for Months Pretrial. TypeInvestigations (Nov. 17, 2020). https://www.typeinvestigations.org/investigation/2020/11/17/federal-prosecutors-hold-protesters-for-months-pretrial/