• Rosemary Martoma, MD, FAAP

COVID-19: An Inadvertent Death Sentence for Federal Prisoners?

When my husband was sentenced to nine years in federal prison for a nonviolent crime, it wasn’t intended to be a death sentence; however, due to the coronavirus disease 2019 (COVID-19) pandemic, that is exactly what it feels like. Two days ago, as COVID-19 began to spread like wildfire in a Louisiana federal prison, the federal Bureau of Prisons (BOP) instituted a 14-day lockdown at their 122 facilities, which house roughly 175,000 federal prisoners nationwide; they reasoned that the lockdown was “to further mitigate the exposure and spread of COVID-19.”

I’m struggling to understand how packing eighty men into a single room — the equivalent of placing them on a Petri dish and into an incubator — is a reasonable interpretation of the COVID-19 prevention guidelines recommended by the Centers for Disease Control and Prevention (CDC).

The devastating implications of community spread (defined as transmission by an unknown source) in the incarcerated setting are playing out, as I write, at the Federal Correctional Complex (FCC) Oakdale, in Louisiana, and the Federal Correctional Institution (FCI) Elkton, in Ohio. In just two weeks, COVID-19 became so pervasive at FCC Oakdale that the BOP replaced definitive testing with presumptive diagnosis; five federal prisoners are dead, one staff member was in critical condition, and the BOP won’t disclose how many have been diagnosed. Similarly, the BOP has reported two deaths at FCI Elkton in just two days.

Many of the BOP’s facts don’t reconcile: on March 21st, the BOP confirmed that the first case to test positive for COVID-19 in the federal prison system was at Metropolitan Detention Center (MDC) Brooklyn in New York, but a later press release outlined that a prisoner from FCI Oakdale I (a division of FCC Oakdale) had already tested positive and was on a ventilator at that time; additionally, the BOP website indicated that FCC Oakdale had a total of 10 prisoners and staff with positive test results, but around the same time, the Washington Post reported that 30 prisoners and staff had positive test results at FCC Oakdale. The BOP’s website (which updates at 3 pm daily) currently indicates that FCI Elkton has only two positive tests, yet the death count is also at two.

Also puzzling, is the stern memo that Attorney General Barr issued to BOP Director Carvajal, directing him “to prioritize the use of your various statutory authorities to grant home confinement for inmates seeking transfer in connection with the ongoing COVID-19 pandemic.” Barr understands, all too well, that unless he declares a state of emergency, under the Coronavirus Aid, Relief, and Economic Security Act (CARES Act), the BOP is powerless to expand the very limited scope of prisoners that can currently be released into home confinement.

Timeline: The BOP’s Response to the COVID-19 Pandemic

On March 5th, 2020, Senator Kamala Harris wrote to Carvajal inquiring if the BOP had made the necessary preparations for COVID-19 within the federal prison system.

On March 9th, 2020, 15 democratic senators sent a letter to Carvajal explaining that incarcerated individuals are “at special risk of infection” and asking him to share the BOP’s plans for managing the impending COVID-19 crisis.

On March 13th, 2020, as a result of the COVID-19 outbreak in the United States, President Trump declared a national state of emergency. That same day, the BOP issued a directive to suspend social and legal visits and to restrict prisoner transfers for 30 days.

On March 19th, 2020, prisoner transfer restrictions were relaxed by the BOP “to better manage the detention bedspace.”

Senator Kamala Harris sent a follow-up letter to Carvajal, urging him “to reduce the incarcerated population” and admonishing his response (i.e., suspensions and potential lockdowns) to the threat of COVID-19 as “unjust and insufficient.”

On March 21st, 2020, the BOP confirmed that a federal prisoner at Metropolitan Detention Center (MDC) Brooklyn, in New York, had tested positive for COVID-19 at a local hospital; they indicated that this was the first federal prisoner to test positive for COVID-19.

On March 22nd, 2020, the BOP confirmed six cases, including: three prisoners (one at MDC Brooklyn, New York; and two at FCC Oakdale, Louisiana), and three staff (at Grand Prairie, Texas; Leavenworth, Kansas; and Yazoo, Mississippi).

During a press brief with the coronavirus taskforce, President Trump considered the release of “totally nonviolent” federal prisoners: “We are actually looking at that, yes.”

On March 23rd, 2020, Congressman Keller wrote to the BOP Director, amidst reports of continued prisoner transfers, pressing him to adhere to his original directive to suspend prisoner transfers in order to stymie the continued spread of COVID-19.

On March 24th, 2020, a bipartisan group of senators wrote to Barr and Carvajal, pleading with them to follow CDC guidance, which placed individuals over 60 years old and those with chronic medical conditions at high-risk for “suffering more severe illness and death” as a result of COVID-19 infection. They urged the BOP and the Department of Justice (DOJ) to expand the eligibility for compassionate release to include “vulnerability to COVID-19,” and requested that they use their existing authorities under the First Step Act (FSA) to transfer the “most vulnerable” prisoners to home confinement.

On March 26th, 2020, Barr sent a memo (“Prioritization of Home Confinement as Appropriate in Response to COVID-19 Pandemic”) to Carvajal and directed him to do just that. The memo suggested guidelines that could be used to determine a prisoner’s candidacy for home confinement and directed the BOP to place any “inmate to whom you grant home confinement in a mandatory 14-day quarantine period before that inmate is discharged.”

That same day, Carvajal touted,As of March 26, out of over 146,000 inmates in our custody, ten inmates have tested positive. Out of over 36,000 staff, eight staff have tested positive. We believe that the low number of cases to this point, in a system this large, is a testament to our effective planning and execution to-date.”

On March 27th, 2020, Trump signed into law the Coronavirus Aid, Relief, and Economic Security (CARES) Act, which authorized the BOP to extend home confinement eligibility to currently-incarcerated prisoners if the Attorney General declared a state of emergency. However, exposing their mindset, the BOP simultaneously filed motions to assert that judges have no authority to change the conditions of a defendant’s confinement during the COVID-19 pandemic.

On March 28th, 2020, the BOP issued a press release about the first prisoner to die from COVID-19 complications. The prisoner was from FCI Oakdale I.

On March 30th, 2020, the House of Representatives wrote to Attorney General Barr, urging him to respond to the “death and explosion of cases in the Oakdale prison” by declaring a state of emergency and asking him “use every tool at your disposal to release as many prisoners as possible.” Additionally, the letter requested that the BOP collect and maintain comprehensive data with regard to the decision-making process (in consideration of release to home confinement) for every prisoner under their supervision.

On March 31st, 2020, due to the sustained transmission of COVID-19 at FCC Oakdale, a BOP spokesperson confirmed that in order “to conserve valuable testing resources” the facility was no longer testing COVID-19 symptomatic prisoners but would instead presume their positive status. The spokesperson also said that the BOP would not release data about the presumed positive cases, sparking fears that the BOP was concealing the scope of the federal prison COVID-19 outbreak. That night, the BOP announced that all prisoners would be “secured [emphasis added] in their assigned cells/quarters” for 14 days.

On April 1st, 2020, after the lockdown began, the BOP announced the death of a second low-security prisoner at FCI Oakdale I from COVID-19 complications.

On April 2nd, the BOP announced three more deaths: two at FCI Oakdale I; and one at FCI Elkton, Ohio (the Elkton prisoner’s coronavirus test was still pending at the time of death).

On April 3rd, the BOP announced two more deaths; one at FCI Oakdale I; and the other at FCI Elkton.

Next Steps

Locking our federal prisoners into overcrowded and unhygienic quarters is a death sentence for individuals with underlying health conditions because they are at high risk for severe outcomes from COVID-19. If COVID-19 is introduced (through an infected individual or an asymptomatic carrier), the disease will spread unfettered because the BOP has “secured” federal prisoners in an ideal breeding ground for the virus.

We can learn from the mistakes of FCI Oakdale I and FCI Elkton. Every federal prisoner that has died at these facilities — according to the BOP — had “long-term, pre-existing medical conditions which the CDC lists as risk factors for developing more severe COVID-19 disease” and was housed in a low-security facility.

The only way to protect federal prisoners from this failed experiment is to demand that the Attorney General and the BOP Director take extraordinary measures during these extraordinary times — by protecting the most vulnerable prisoners from life-threatening risks.

If we want our voices to be heard, we need to call and write to our congress members. They have the power to hold the Attorney General and the BOP Director accountable for their actions, to pressure Barr into declaring a state of emergency, and to pressure Carvajal into lifting home confinement restrictions during the state of emergency.

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