Federal Prison and COVID-19: ACLU Lawyer says Federal System Must do More

ACLU Lawyer Andrea Woods has been on the front lines of the COVID-19 fight. In a recent post, she indicated her discontent with the way the system is denying her clients their humanity:

What I’ve seen is a chasm between the courage and humanity of my clients — people discarded in crowded facilities trying against all odds to follow public health guidelines — and the officials who incarcerate them: bureaucrats ever ready to point the finger elsewhere as they deny incarcerated people adequate food, water, PPE, cleaning supplies, testing, the ability to socially distance, and subject COVID-positive patients to pepper spray.

More than 1,000 incarcerated people have died from confirmed cases of COVID-19, and 88 of the top 100 largest outbreaks in the country are in jails and prisons. Even this paints an incomplete picture: Around the country, we’re seeing facilities refuse to provide COVID-19 testing to incarcerated people to keep reported numbers artificially low. In Arizona, officials reportedly went so far as to order incarcerated people to refuse COVID-19 tests or else face a “beat-down.” Other jurisdictions, including in Texas and California, simply ignore COVID-19 case counts in prisons in order to increase their chances of reopening.

Andrea Woods, ACLU

Woods continues with a very specific rebuke: the failure of the federal bench to intervene and make things right in the federal prisons despite several opportunities:

Many recent legal rulings on important matters of public health have fallen short. Many trial courts have cherry-picked evidence or misapplied the law to rule against incarcerated people. And when trial courts find that our clients’ rights were violated, courts of appeals ignore the record and go out of their way to reverse course — most notably when the Supreme Court recently paused a court order requiring increased protections in the Orange County Jail without offering any explanation, and despite rising COVID infections and dishonesty by jail officials (called out as “bad behavior” by Justice Sotomayor in her dissent).

Andrea Woods, ACLU

As I have been talking to loved ones of incarcerated persons, I have realized that the federal prisons are not equipped to handle COVID-19. This is because there are too many incarcerated persons and not enough space in the prisons. There is very little way to socially distance especially when you get back to your bunk. It is evident that this is so even as the BOP indicates that they are starting to allow visitation again soon. You can look to places like Seagoville and Carswell to see that the federal prisons are not truly ready to handle the virus. You don't even have to have malice to see it: you can say that the BOP just isn't and wasn't ready. As we move into the winter months I believe that the situation will get worse in the prisons just as the court did in Kirschner.

I agree with Woods that the judges could do more to alleviate the situation. Federal Judges have the power to step in and demand change. They have the power to grant compassionate releases by the bunches. They have the power to reduce a sentence to where the incarcerated person has no days left and has an increased term of supervised release like in Young. However, many judges do not do this. Just like the prison system is not set up to handle COVID-19, many judges are also not ready to grant the relief that is necessary to reduce the risk of COVID-19 spreading. That relief is best in the form of releasing more incarcerated persons, especially from the BOP

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