Notes From the June 2, 2020 Senate Judiciary Hearing

On June 2^nd, 2020, the Senate Judiciary Committee held a hearing on prison safety during the COVID-19 pandemic amidst growing concerns that the Federal Bureau of Prisons and Immigration and Customs Enforcement Detention Centers were not adequately addressing the health and safety of those in their custody. Those giving testimony included director of the BOP, Michael Carvajal, medical director of the BOP, Jeffrey Allen, executive associate director of ICE (enforcement and removal operations), Henry Lucero, and deputy assistant director of ICE (health and clinical services), Ada Rivera

What Is the Senate Judiciary Committee?

In addition to its critical role in providing oversight of the Department of Justice and the agencies under the Department's jurisdiction, including the Federal Bureau of Investigation, and the Department of Homeland Security, the Judiciary Committee plays an important role in the consideration of nominations and pending legislation.

Executive nominations for positions in the Department of Justice, Office of National Drug Control Policy, the United States Parole Commission, the United States Sentencing Commission, and the State Justice Institute, as well as select nominations for the Department of Homeland Security and the Department of Commerce are referred to the Senate Judiciary Committee.

The Judiciary Committee is also charged with the consideration of all Article III judicial nominations.  These include Supreme Court nominations, appellate court nominations, and district court nominations.  The Committee also considers nominations to the Court of International Trade.

FROM THE SENATE JUDICIARY COMMITTEE WEBSITE

The United States Senate Committee on the Judiciary, informally the Senate Judiciary Committee, is a standing committee of 22 U.S. Senators whose role is to oversee the Department of Justice (DOJ), consider executive and judicial nominations, and review pending legislation

THE SENATE JUDICIARY COMMITTEE, WIKIPEDIA

Opening Remarks

Sen. Lindsay Graham (SC – R) opened the hearing by addressing the killing of George Floyd by a police officer and the subsequent protests nationwide as important context for an evaluation of the BOP and ICE detention centers as hearings regarding law enforcement address the root of the problems that lead to injustice. Sen. Graham then outlined that 3,183 inmates have been placed on home confinement since the passing of the CARES Act in March and ICE facilities have been operating at reduced capacity.

Sen. Feinstein (CA – D), Sen. Durbin (IL – D), Sen. Coons (DE – D) and Sen. Blumenthal (CN – D) also gave opening statements addressing the impact George Floyd’s killing and subsequent protests have had to address racial prejudices and disparities in law enforcement entities in addition to concerns about the management of the COVID-19 pandemic within the prison system. Sen. Durbin outlined the rate of COVID-19 infection in the BOP as 6.6 times higher than the general population, pointed out that the 3183 inmates released on home confinement make up less than 2% of the inmate population and mentioned the case of Andrea Highbear, a pregnant inmate who died of COVID-19 in BOP custody shortly after giving birth.

He also mentioned glaring racial inequities in the PATTERN risk-assessment tool – a formulaic system enacted as part of the FIRST STEP Act that predicts an inmate’s risk of recidivism based on a variety of factors. To qualify for relief under the CARES Act, an inmate must have a PATTERN score of “minimum,” however, only 7% of black men are classified as minimum risk as opposed to 30% of their white counterparts. Sen. Coons echoed this sentiment, pointing out that people are ed up with the lack of progress with regards to the cruelty of law enforcement. Sen. Blumenthal called on his fellow senators to step up to leadership positions as current presidential leadership is “fanning the flames.”

Dir. Carvajal gave an opening statement thanking the panel for an opportunity to clarify the state of the BOP after apparent misinformation in the public and outlining increased testing capabilities and PPE availability within the prison system. Dr. Allen emphasized the BOP’s working relationship with the CDC and mentioned that the efforts to prevent the spread of COVID-19 “evolved” as the CDC released changing guidelines and information.  

CARES Act Eligibility

A common theme between many senators was a concern that restrictions on “eligibility” for the CARES Act were preventing home confinement from being used effectively.

In his line of questioning, Sen. Graham asked whether Andrea Highbear would have been eligible for home confinement under the CARES Act. Dir. Carvajal did not answer directly but pointed out that she was in custody for a very short period before her death. Sen. Harris (CA – D) asked whether 2% of inmates was truly consistent with who was “eligible” for home confinement, to which Dir. Carvajal replied that many of those denied home confinement had violent offenses, sex offenses, or no release plan.

Sen. Coons questioned why there are requirements for home confinement that do not have anything to do with an inmate’s vulnerability (such as the requirement that an inmate serve 50% or more of their sentence.) Dir. Carvajal cited such restrictions as a tool for prioritizing reviews of vulnerable inmates since such a large number of inmates have underlying health conditions. When asked if such restrictions are still in place to determine eligibility, Carvajal merely said that all eligible inmates were being reviewed.

Sen. Blumenthal also asked whether the 50% rule was still being used at FCI Danbury specifically, where inmates filed a civil suit against the prison for refusing to release inmates on home confinement and a judge ordered that some inmates must be released. Sen. Blumenthal asked how many inmates have been screened for home confinement, why none have been released, and whether the 50% rule was still being used, all of which Dir. Carvajal said he did not know. Sen. Blumenthal emphasized that the conditions in FCI Danbury reflect those around the country and that the judge in addressing the civil suit against FCI Danbury found that refusing to release any inmates onto home confinement put them in deliberate danger and was in violation of the 8^th amendment and expressed that Dir. Carvajal’s lack of knowledge in this area was unacceptable.

Confusion around PATTERN Scoring

With regard to eligibility, several senators brought up the confusion around PATTERN scoring specifically. Sen. Whitehouse (RI – D) asked about the ProPublica article that outlined the changes made to PATTERN without public knowledge that classified fewer inmates as “minimum risk” under PATTERN and subsequently disqualified them from relief under the CARES Act. Dir. Carvajal replied that the version of the assessment tool released through ProRepublica was a draft and not what they were using. Follow-up questions did not clarify why inmates would have been scored more punitively without their knowledge if the PATTERN tool released by ProRepublica was only a draft. Sen. Booker also asked Dir. Carvajal to weigh in on the use of PATTERN as a determinant for home confinement as potentially inappropriate since it is a new and incomplete tool still undergoing changes to address the aforementioned racial biases obvious within it. Dir. Carvajal said the more restrictive changes cited by the ProRepublica article are meant to address the racial disparities. Sen. Booker asked Dir. Carvajal to commit to making the PATTERN assessment criteria public, to which he did not agree.

Many senators also raised issues regarding the lack of transparency by the BOP regarding preventative measures taken to control the spread of COVID-19. Sen. Harris also emphasized that she and Sen. Booker have both written to the BOP and prisons in their home states several times with no reply with concerns about the handling of COVID-19 in the prisons. Sen. Tillis (NC-R) asked why the BOP has not disclosed how many tests are being done at each location. Both Dir. Carvajal and Dr. Allen said they did not know. Sen. Coons also expressed concern about the lack of transparency with regards to the testing numbers. With regards to these testing numbers, Sen. Feinstein brought up the high infection rates at Lompoc and Terminal Island and argued that the continued spread would indicate current efforts are not working and that the living situations of inmates need to be re-evaluated. Dir. Carvajal said that prisons are “not made for social distancing” and that the BOP has created converted living arrangements such as tents and gymnasiums to attempt to create more distance between inmates.

Concerns With the Numbers

 Senators also expressed confusion over how few inmates have been released onto home confinement and the lack of transparency regarding who is considered. When Sen. Harris asked how many inmates had been denied home confinement, Dir. Carvajal did not know. She brought up Fidel Torres, an elderly inmate who died of COVID-19 in BOP custody while serving a marijuana charge the same day that Michael Cohen was released to home confinement on the CARES Act. She questioned whether Dir. Carvajal or anyone in his office was personally asked to release Michael Cohen or Paul Manafort. Dir. Carvajal stated that he is not involved in the evaluation of individual inmates. Sen. Whitehouse also asked about United States v. Peña wherein Warden Spalding cited BOP guidance as a reason for not considering COVID-19 as a factor in granting compassionate release and further testified that the central office sends down the name of an inmate to be considered for release. Whitehouse expressed confusion as to why the names of specific inmates would come from the central office down rather than from the prisons to the central office and argued that such a system would allow for preferential treatment for inmates with connections, such as Paul Manafort and Michael Cohen, both of whom have been released to home confinement on the CARES Act. Dir. Carvajal said that he doesn’t weigh in on decisions about specific inmates and that he was not familiar with Warden Spalding’s testimony in that case. He emphasized instead that the criteria used to evaluate inmates for home confinement is standard and widely available. The conflation between compassionate release and home confinement was not clarified.

With regards to lack of transparency, several senators asked for demographic breakdowns of those approved for home confinement and their charges, to which Dir. Carvajal did not give any clear answers. Sen. Klobuchar (MN – D) asked for a demographic breakdown of those approved for release onto home confinement including race and charges. Dir. Carvajal said that he does not have that information but that he is confident the demographic of those released mirrors the demographic of the general population. Sen. Harris (CA – D) pointed out that 70% of federal inmates are black and brown people. Sen. Booker (NJ – D) also asked for a demographic breakdown, emphasizing that COVID-19 has disproportionately affected black communities. Dir. Carvajal replied that he doesn’t know how to get that data, a truly baffling stance since the BOP lists the race/ethnicity of each inmate on its website and the BOP presumably has a list of the inmates who have been approved for home confinement. Sen. Tillis pointed out that the civil unrest over police brutality is similar to the concerns about vulnerable inmates imprisoned during a pandemic; that both police brutality and imprisonment during a pandemic impose a potential death sentence where none was warranted.

Several republican senators brought up concerns about public safety with the release of inmates onto home confinement. Sen. Grassley (IO – R) expressed concern that placing inmates on home confinement would pose a danger to the community to which Dir. Carvajal emphasized that inmates with violent offenses, sex offenses, or an unverifiable release plan were not released on home confinement. Sen. Grassley also asked about testing capabilities for guards and BOP staff to which Dir. Carvajal said they are not currently testing staff through the BOP. Sen. Hawley (MI – R) echoed Sen. Grassley’s fears about public safety and asked Dir. Carvajal to provide information about how many of the inmates released on home confinement have been rearrested, which Dir. Carvajal promised to provide.

Sen. Feinstein also brought up the high infection rates at Lompoc and Terminal Island and argued that the continued spread would indicate current efforts are not working and that the living situations of inmates need to be re-evaluated. Dir. Carvajal said that prisons are “not made for social distancing” and that the BOP has created converted living arrangements such as tents and gymnasiums to attempt to create more distance between inmates.

A common theme between many senators was a concern that restrictions on “eligibility” for the CARES Act were preventing home confinement from being used effectively.

Sen. Durbin, Sen Hirono (HI – D), and Sen. Cruz (TX – R) directed a majority of their questioning to the ICE leadership.

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