President Biden promised on his first full day in office that he would order the federal Bureau of Prisons to reevaluate its Covid-19 protocols and release additional data on the virus’s spread in prisons, two of a slew of pledges aimed at ensuring an equitable response to the pandemic in the United States.
That exact order, however, never arrived. Now, as Covid-19 levels are rising in federal prisons around the country as a result of the Omicron variety and still-inadequate infection management, advocates believe the BOP’s Covid-19 policies are as dysfunctional as they’ve ever been.
“They’ve continued with business as usual as a mass death event has unfolded under their watch,” said Joshua Manson, the communications manager for the UCLA Law COVID Behind Bars Data Project, which tracks Covid-19 outbreaks in prisons. “It’s been a disaster.”
Since the beginning of the pandemic, about 3,000 jailed persons have died of Covid-19, with about 300 of them in federal custody. After accounting for the fact that the prison population is younger, people in jail are nearly three times more likely to die of Covid-19 than the general population.
Reversing that pattern was an important aspect of Biden’s pandemic strategy, as well as a pillar of his wider aim of promoting fairness throughout his Covid-19 response. However, interviews with major prison activists, independent legal and medical experts, a former federal prisoner, and a U.S. senator demonstrate that the BOP’s approach to Covid-19 has recurring and basic flaws. Poor infection management in jails; erroneous, obfuscated statistics on how many jailed persons are sick with Covid-19 and have died from it; a shoddy vaccine deployment; and practically no public information on how the BOP prioritizes booster injections for its inmates
“They have a long runway to meeting the goals they set out for themselves with respect to health equity, racial equity, and civil and human rights more broadly,” said Sakira Cook, senior program director at the Leadership Conference on Civil and Human Rights, a coalition of over 200 civil rights organizations.
They’re on the right track, she says, but there are still “miles to go.”
A representative for the Department of Justice, which controls the BOP, said that the agency follows infection prevention rules set forth by the Centers for Disease Control and Prevention. BOP has made tremendous progress in vaccinating the jail population, she said in a statement, and she described steps to be truthful about prison conditions. To argue that the White House had kept its commitment, a White House official pointed to a second executive order centered on federal workers, which was issued before Biden vowed to alter prisons’ Covid response. The BOP is not mentioned at all in that order.
Because many institutions are managed by state authorities, and nearly 3,000 prisons are normally run by local organizations, such as counties, Biden does not have a unilateral ability to address discrepancies across the whole prison system. He does, however, have the power to make modifications in federal institutions managed by the Bureau of Prisons.
The problems of the prison system to respond to the early phases of the Covid-19 epidemic have been extensively chronicled, and they frequently paralleled struggles beyond the prison gates, such as limited access to Covid-19 testing. However, the recent fast deterioration in numerous jail systems suggests that many components of the BOP’s Covid response are still failing two years after the epidemic began.
According to Sen. Richard Blumenthal (D-Conn.), who inspected the institution last week, people at FCI Danbury in Connecticut are still waiting three days for Covid-19 test results.
And, at least in Danbury, the spike isn’t only due to Omicron. According to data compiled by a team at the University of Iowa, there were 234 new cases in a population of roughly 1,000 people in January, but there is no frequent testing and those in quarantine aren’t being monitored for worsening symptoms, according to Sarah Russell, director of the Quinnipiac Legal Clinic, who previously filed a class-action lawsuit against the facility challenging its Covid-19 protocols.
She offered two more clear examples: at the onset of a late December epidemic, the facility’s personnel opted not to isolate women afflicted with Covid-19, and they also refused to notify them whether they had been infected, she added. They also neglected to isolate two persons who tested positive on Jan. 22 until the next day.
When asked about the allegations at Danbury, a DOJ spokesperson said: “The BOP follows CDC guidelines as well as BOP policy to prevent and mitigate COVID-19 infections. If it is determined that BOP staff have not adhered to COVID-19 protocols, disciplinary action may be warranted.”
The situation at FPC Alderson in West Virginia, according to Paul Petruzzi, a criminal defense attorney for women, is much worse, with even less information available. According to available statistics, Alderson saw significant increases in new Covid-19 cases in late December and early January. In the last three weeks of December, at least 137 women tested positive, and another 92 women tested positive the week of January 17. Alderson is home to over 700 women.
Because the hospital does not test broadly, Petruzzi believes there are more women with Covid in the facility than the statistics indicates. Three women have died since the epidemic began, he added, and two of his clients are in the hospital, one of whom is intubated.
“It might have the reputation of being ‘Camp Cupcake’ where Martha Stewart went, but it’s not now. There have been far too many dead women in that institution in the last month for it to be considered or portrayed as a light kind of punishment. It’s hellish,” Petruzzi said.
Women who want to be vaccinated are suddenly being informed there is a waiting, according to Petruzzi.
A representative for the Department of Justice claimed Alderson followed CDC recommendations, denied there was a vaccination queue, and that testing is done only when “warranted.”
According to the statistics, Omicron isn’t solely to blame for the present amounts of Covid-19 in government facilities.
“I think the numbers from the Bureau of Prisons show a prison system that has been unable, or unwilling — it’s unclear which — to control the spread of Covid in its facilities,” said Alison Guernsey, a law professor at the University of Iowa who has been researching Covid-19 outbreaks in prisons.
According to statistics obtained by Guernsey and her research assistant, seven BOP institutions had triple-digit spikes in new Covid-19 instances during the week of Jan. 17, including 216 new cases at FCI Berlin in Berlin, N.H., which houses just around 750 individuals. The next week, four institutions had comparable triple-digit increases, including 321 new cases in four days at FCI Oakdale I, a 900-person men’s prison in Louisiana.
Guernsey also stated that ongoing difficulties with BOP’s Covid statistics, such as strangely dropping cumulative counts of Covid-19 cases for some institutions, suggest that her totals of new cases undercount the real number of new infections.’
Biden’s national pandemic plan was designed to keep these kinds of disasters at bay.
Two vows in his 198-page Covid-19 plan were explicitly intended at halting the virus’s transmission in jails.
The first was to “Ensure the Federal Bureau of Prisons and U.S. Immigration and Customs Enforcement (ICE) detention facilities are following sound public health guidance.”
The administration promised it would release an executive order that would require the BOP and ICE to “evaluate their COVID-19 protocols, release data on the spread of COVID-19 in facilities, and use federal grant programs to create incentives for state and local facilities to adhere to sound public health guidance.”
Not only did the directive never come to pass, but several big advocacy groups told STAT they had no idea it was being prepared.
While the BOP and the CDC have issued updated guidelines on managing Covid in prisons in recent months, the BOP has failed to implement them, as indicated by recurring outbreaks. In a July investigation, the Government Accountability Office found that prison officials were frequently perplexed about how to apply BOP’s guidelines.
The CDC hasn’t disclosed any meaningful information on the spread of Covid-19 in its facilities, either. Legal experts have expressed dissatisfaction with the difficulty in tracking the number of Covid-19-related deaths in jails. The Bureau of Prisons has been sluggish to update the publicly accessible number of fatalities in its institutions — some deaths have taken a year or more to be recorded — and it does not include those who were dying of Covid-19 in jail and then released to die at home soon before their death.
After a medical examiner conducts an autopsy and the deceased’s family is contacted, the BOP updates its death numbers as fast as feasible, according to a DOJ official. They confirmed, however, that the BOP “does not track changes in medical status or potential death rates for anyone who is no longer in BOP’s custody.”
The BOP also publishes daily infection numbers for each of its institutions, but experts believe that these estimates are likely to miss a significant proportion of illnesses. They point out that the BOP does not provide detailed enough testing data to compute so-called test positive rates, which are commonly used in public health to predict what proportion of a population is likely to have Covid-19, given that not everyone in a neighborhood is tested at the same time.
The government has kept its commitment to push for additional data on the spread of Covid-19 in federal institutions, according to a White House spokesperson. However, two academics who study the distribution of Covid in federal prisons told STAT that the data on the webpage the spokesman pointed STAT to had been available for months before Biden assumed office.
“If the Biden administration’s claim is that they were solely responsible for initiating facility-by-facility reporting, then they are mistaken,” said Guernsey, the Iowa professor, who provided screenshots of the webpage in question dating to May 2020. “I just verified with my records that we have been pulling facility-specific data from the BOP’s website since we started our data-tracking project in April of 2020.”
The White House spokeswoman also mentioned that the Bureau of Prisons now has statistics on Covid-19 vaccine administration in prisons, and that the Centers for Disease Control and Prevention has developed new tools for visualizing Covid-19 rates in state and federal prisons.
In his January proposal, Biden also promised to deliver immunizations to jailed people and their employees. It has done a little better in terms of achieving that aim.
A DOJ spokesperson told STAT that 93,501 federal inmates — 69.4% of the federal prison population — are fully vaccinated, which they noted “is a higher percentage than in the US population as a whole, which has a vaccination rate of 63.5%.”
Medical professionals, on the other hand, have expressed concern that the BOP’s immunization initiatives are likely leaving the most vulnerable persons in jail unprotected. That’s because the BOP hasn’t made the kind of educational efforts they claim are required to persuade people who have doubts about the vaccination due to underlying medical conditions or mistrust of the criminal justice system.
Vaccinations were done in big settings where detained prisoners were asked to either take the vaccine or sign a refusal, according to a court-ordered independent study from a federal institution in California dated April. Many people reported that when they tried to ask questions about the vaccine’s safety, or posed questions about their own health or medication issues in relation to the vaccine, they were told to either take the vaccine or sign a refusal form, according to Homer Venters, the prison health expert who conducted the investigation.
Only five people out of 33 who first refused the vaccination stated they would never take it, according to Venters. Instead, many of them had readily addressed — but unresolved — queries about the vaccine’s risk for adverse reactions and combinations with their existing drugs.
“It has a paradoxical effect of creating a pool of extremely high-risk unvaccinated patients. Many of these high-risk patients were first offered the vaccination three or four months ago, and BOP leadership’s refusal to address their very real and predicted questions and concerns during that time considerably raises the probability of COVID-19-related mortality, according to Venters.
The DOJ spokesperson said that the BOP has provided “educational posters and promotional videos, developed in consultation with the CDC” and has “created incentives to encourage inmates to get vaccinated,” like commissary incentives and movie showings.
While the BOP is now administering Covid-19 booster injections, campaigners have complained that there is no statistics on how many inmates have received them. A representative for the Department of Justice informed STAT that 29,200 inmates in federal detention had received a booster shot, but that information isn’t publicly available on the DOJ’s website.
STAT received anecdotal information from advocates that certain jailed persons were having trouble acquiring boosters. Guernsey, the Iowa law professor, related an incident of an immunocompromised prisoner who was denied a booster because he had previously caught Covid.
In December, the CDC introduced a new testing initiative that will provide free PCR testing to crowded settings such as jails. In late December, the Biden administration also declared that anyone who were released to home confinement in reaction to Covid would not be required to return to jail at the end of the Covid-19 epidemic.
Death rates have also appeared to level down as vaccinations have been implemented, but experts say it’s hard to determine for sure due to the BOP’s inconsistent reporting of Covid-19 deaths. Guernsey’s team identified 281 persons who died of Covid-19 by name, with 66 percent dying in 2020 and 30 percent dying in 2021. According to publicly accessible statistics, nine persons have died while jailed in January.
“There’s some progress but it’s been very slow, and very halting, and very ad hoc,” said Corene Kendrick, deputy director of the ACLU National Prison Project. The Biden administration also looks to be under increasing pressure to solve the agency’s long-standing problems.
Because of its reaction to Covid-19, the GAO said this week that it was contemplating adding the BOP to its “high-risk list” of federal agencies “vulnerable to waste, fraud, abuse, or mismanagement, or in need of transformation.” On Jan. 21, the House Judiciary Committee held a hearing on the BOP’s reaction to Covid-19, and on Thursday, the committee will hold another hearing with the agency’s director.
Senator Richard Blumenthal of Connecticut has asked for a federal probe of the conditions at the Danbury prison, and has told STAT that he would ask the Senate Judiciary Committee to launch a countrywide investigation into Covid conditions at the BOP.
In the next months, BOP will undergo a major change: a new director, Carvajal, the agency’s current head, and a career BOP employee who was originally chosen to the top role by President Trump, announced his retirement last month.
In a recent op-ed, Kendrick stated, “Carvajal’s resignation is an opportunity for the administration to finally live up to many of its campaign promises.” “As another highly transmissible variant spreads throughout the country, there is no time to waste.”