Carvajal and the Pandemic in Federal Bureau of Prisons

On Thursday April 15, 2021, Director Michael Carvajal testified to the United States Senate Judiciary Committee.  Director Carvajal testified on several topics including:

• state of the pandemic inside the Federal Bureau of Prisons
• home confinement under the CARES Act
• state of programming under the FIRST STEP Act
• overcrowding concerns in relation to President Biden’s Executive order regarding the use of private prisons.

You can view the testimony here.

The Senate Judiciary Committee Generally

The Senate Judiciary Committee is charged with many things, including holding hearings and votes on nominations for Judicial Candidates and the United States Sentencing Commission. As relevant here, they also provide oversight to agencies like the Federal Bureau of Investigation, the Department of Homeland Security and the Bureau of Prisons.

Opening Statements

Director Carvajal’s Prepared Remarks

Director Carvajal made an opening statement at the beginning of the hearing.  That statement is provided in full on the Senate Judiciary Committee Page.  Key portions of the statement include:

Covid Topics

“Since March of last year, we have transferred approximately 24,000 inmates to home confinement, with almost 7,000 transferred directly under the CARES Act, a 250% increase in home confinement placements since the beginning of the pandemic. While the year was marked by challenge and loss, working closely with the Centers for Disease Control and Prevention (CDC) contributed to the extraordinary steps taken to help keep staff, inmates, and our communities safe. Our aggressive vaccination strategy put the Bureau on firm footing to actively and carefully plan for normalizing operations. At this point, all Bureau staff have been offered one of the COVID-19 vaccines, and by April 19 all inmates will be eligible for a vaccine; by mid-May, we anticipate that all inmates will have been provided the opportunity to be vaccinated.”

Staffing

"In the last calendar year, we have hired over 3,800 staff and are continuing a full-court press for staffing up. In the past 8 weeks, we have hired almost 500 new staff. We are utilizing several recruitment incentives, including one for our own staff, to help bring great candidates on board. It is impressive to see our staff step up and be a part of this important effort."

First Step Act Issues

Despite the pandemic, the Bureau is on track to meet the requirements of the First Step Act (FSA). While the global pandemic certainly impacted the delivery of FSA programs in institutions, critical services such as mental health care, crisis intervention, and religious services have continued unabated throughout the pandemic. As we have learned more about virus mitigation strategies and begun the process of vaccinating staff and inmates, we have been able to resume much of our programming. As of April 1, 2021, over 49,000 inmates were enrolled in Evidence-Based Recidivism Reduction (EBRR) Programs and Productive Activities (PA). With respect to inmate eligibility for FSA Time Credit, of approximately 124,000 inmates reviewed for eligibility, approximately 50% are eligible.

Chair Dick Durbin’s Opening Statement:

Chair Dick Durbin delivered an opening statement where he stated that he believed that the BoP was not approving transfers to home confinement and opposing compassionate release at too high of a rate to reduce the prison populations and reduce the spread of COVID-19.

He also indicated that the PATTERN tool was deeply flawed and that many inmates were not receiving programming.  Durbin also indicated that the BOP’s proposed regulation for earned time credits limited the amount of time that was possible to be received and prevented participation.  Chair Durbin also stated that the lack of staff caused teachers and other non-correctional staff to work as corrections officers. 

Chair Durbin also played a video of the story of Alton Mills, given life sentence at age of 23 for nonviolent offense.  He has since been released.  

Ranking Member Grassley’s Opening Statement

Chuck Grassley’s opening statement indicated that the BOP was not properly applying the home confinement portions of the FIRST STEP Act and that there was a risk that individuals on home confinement may have to go back to prison.  

The State of the Pandemic:

Director Carvajal indicated that all staff have been presented with the vaccine.  He also indicated that all inmates will have been offered the vaccine by Mid-May. He further indicated that 51 percent of the staff has taken the vaccine that was offered at the BoP with some number of staff taking it at a place other than the BoP. This comes out to 18,000 staff members.  Around 50,000 inmates have been offered and taken the vaccine.  The acceptance rate comes out to 66 percent but the percentage changes daily.  

Carvajal indicated later in his testimony that he took the vaccine in order to show how important it was to take it.  He was not sure why staff members have refused vaccinations but would work with senators to develop more ways to encourage staff to take the vaccine.  

Senator Dianne Feinstein of California referenced the situation at Terminal Island.  Director Carvajal stated that Prisons were not made for social distancing but rather the opposite.  This is even more acute with Terminal Island as it has open dorms and open bays.  At Terminal Island the staff put people in tents outside and converted factories and rooms for more social distancing.  Later during his testimony Carvajal said that prisons were made to contain people closely (see also, the following Office of the Inspector General Report).

Prisons were not made for social distancing but rather the opposite...prisons were made to contain people closely.

Director Carvajal

The CARES Act and the Return of Individuals on Home Confinement to Prison

Director Carvajal has indicated that they were using the Barr Memoranda to determine who should go on home confinement.  Carvajal indivated that the total inmate population at the the beginning of the pandemic was 150,000.  At the beginning of the analysis there were 27,000 inmates that had one risk factor for serious illness or death if they were to become infected with COVID-19.  The BoP applied the Barr Memoranda and the number of people that were eligible after applying the information in the Barr memos was 4000.  

The BoP has transferred 24000 people to home confinement since the beginning of the pandemic.  7400 of those are still on home confinement with 4000 of them on CARES Act Home Confinement.  50-75% of the inmate population was considered for home confinement.  Currently the BoP can consider low and minimum pattern scores for home confinement. 

Carvajal admitted that only 3 of the people that have been on home confinement have been arrested on new crimes (with one of those three being a violent offender) and 151 have violated the terms of the CARES Act home confinement release and had to be brought back to prison.  Most of the people on CARES Act home confinement are being electronically monitored.  

Carvajal pointed out that the CARES Act did not change the statute regarding home confinement (under normal circumstances a person can only serve 6 months or 10 percent of their sentence on home confinement).  There are 310 people who are out on home confinement under the CARES Act that have as much as five years left on their sentence.  For the immediate future the President has reinstated the National Emergency.  

This means that for now the people who are on CARES Act home confinement will not have to go back in immediately.  However Carvajal did say that it is his belief that pursuant to the CARES Act and the January 15th Justice Department Memorandum at the end of the National Emergency the BOP would be required to go get or call back all the people on home confinement under the CARES Act and bring them back to prison.  

There were options such as bringing them back and putting them in minimum security camps so as to not disrupt their lives too much (!), but they would have to come back the way the law is written as of now.  Carvajal indicated that he wanted to work with the DoJ about this but that ultimately the law would have to be passed.  Grassley and Durbin also said that they wanted to work together with to figure something out on this issue.

Stimulus Checks and Restitution

The BoP is receiving and processing stimulus checks as they go directly to inmates trust accounts. However, money that is placed in a federal inmate account that exceeds $450 during a 6 month period is assessed by the BOP and sent to cover prisoner debts including paying restitution to victims, fines and child support. This includes stimulus check money.

Impact of PATTERN on Home Confinement

Cory Booker asked questions about Bias in PATTERN, especially because the PATTERN test was being used in order to determine home confinement and compassionate release.  Carvajal reiterated that the BoP did not make the PATTERN Analysis and that two things were removed from the PATTERN test, age of first arrest and voluntary surrender.  

Biden’s Executive Order and Overcrowding

Several Senators asked about President Biden’s Executive order concerning private prisons. Director Carvajal indicated that there were 11,000 inmates in private prisons and that the number of total inmates was trending downward.  They were able to let some contracts expire already.  The BoP has 150,000 inmates down from 200,000 so some of the need to use private prisons was alleviated.