Statistics Show Federal Bureau Of Prisons Unable To Implement Key Policies During Crisis

Hanlon’s razor is the adage that states, “never attribute to malice that which is adequately explained by stupidity.” The Federal Bureau of Prisons’ (BOP) reaction to COVID-19 and the implementation of the First Step Act have some wondering whether the poor management of the agency can be attributed to the government wanting to keep prisoners locked down and maintain jobs or a deeper, underlying problem.

It is no coincidence that the United States is both the country with the highest incarceration rate worlwide and at the same time leads the world in COVID-19 infections and deaths. Correctional institutions are Petri dishes of infection that spread the virus not only within the prison but to the communities in which they are located. According to a Center for Disease Control and Prevention (CDC) study undertaken in 2021, “… incarcerated populations have experienced disproportionately higher rates of COVID-19–related illness and death compared with the general U.S. population, due in part to congregate living environments that can facilitate rapid transmission ...” Interesting enough, the study by the CDC was conducted in conjunction with the BOP at FCI Texarkana in Texas.

CDC’s study demonstrated the potential for COVID-19 outbreaks in congregate settings including correctional and detention facilities, even among resident populations with high vaccination rates. It turns out that even those who are vaccinated are prone to being reinfected if they are in tight living quarters with those who become infected and are not vaccinated. Prisons present an environment where people are exposed to higher doses of infection that can overwhelm their dose of vaccine protection.

The BOP could have reduced the infection and death rates in their institutions had they followed the guidance from then-Attorney General William Barr at the outbreak of COVID-19 . Barr, in March and April 2020, issued a pair of memoranda to the Federal Bureau of Prisons (BOP) Director Michael Carvajal, to reduce prison populations to avoid contagion among its prisoners. The centerpiece of the initiative under the CARES Act was to move inmates with underlying health conditions to home confinement to complete their sentence. The priority was to remove the sickest, oldest and most vulnerable prisoners, who also posed the least amount of security risk to the community, from prison to home confinement. That program has fallen short and it appears even the implementation of a sweeping law on criminal justice reform, The First Step Act, may also be a failure unless things change.

I reached out to Mark Allenbaugh at SentencingStats,. Allenbaugh, once a staff attorney at the US Sentencing Commission, uses the BOP’s own publicly available data to tell a story of what is actually happening inside the agency. Allenbaugh said that the individual numbers put out by the BOP do not tell a story, but if you look at them as a trend, you find a government agency that continues to be unable to address the problems it faces … even when solutions present themselves

Carvajal, who announced his retirement in January after U.S. Senator Dick Durbin told Attorney General Merrick Garland to fire him, has done little to make use of the CARES Act. According to Allenbaugh’s analysis, there was an uptick in home confinement to approximately 5,400 prisoners during May and June 2020, likely due to the CARES Act. However, since then, that number has remained relatively flat, meaning that the elderly or sick inmates, who could be transferred to home confinement, have stayed in prison. In fact, the overall prison population, which bottomed in early 2021, has increased by more than 20,000 in the past year.

Prison COVID-19 infection rates among inmates are also far worse than what the BOP is reporting and their own figures reflect that. Allenbaugh has a graph that tracks the cumulative daily infection rates of COVID-19 (above) in institutions and the BOP segregates infections between those of staff and those of prisoners. Cases among prisoners spiked from a few hundred in mid-December 2021, as the Omicron variant spread quickly, to almost 10,000 infections by late January 2022 … just over 6 weeks. The prisoner cases then appear to drop precipitously once hitting that peak, seemingly reflecting a miraculous recovery. Allenbaugh said, “If you look at the rates of infection among staff, who are tested daily as part of the institutional regimen or in the community where tests are more available, you will see a rise in cases in line with those of prisoners, but as the infection wanes, the reduction is more gradual, as would be expected because staff generally must test negative before being considered ‘recovered.’”  So how did Allenbaugh interpret this, “The BOP simply is not testing prisoners to determine if or when they are recovered. Rather, they are just assuming recovery after approximately 10 to 14 days.  The rate of drop in infection among prisoners cannot be otherwise explained, particularly if you compare the trends between prisoners and staff. The problem, therefore, is that infectious prisoners are being returned to the general population spreading the infection even more.”

The BOP is also starting to report the number of vaccinations it is given out to both staff and prisoners. There are currently (January 2022) 134,896 prisoners in BOP institutions. However, the number of prisoners that remain to be fully vaccinated plus number of inmates who can receive a booster based on current supply is about half of that amount. While the BOP touts that its vaccination rates are near 90%, that includes those who have received only one shot, which we all know is not effective enough. It is also likely that more boosters or routine shots will be part of our future as COVID-19 will move toward endemic … part of our lives forever. The BOP simply does not have the ability to fully vaccinate the full contingent of prisoners and staff and even if it did, it is vaccinating inmates far too slowly.

Further proof of the misrepresentation of vaccination rates can be drilled down to the institution level. “If you look at actual population of a facility like FMC Rochester,” Allenbaugh said, “you would find that the BOP reports that there are 566 prisoners at the institution, whereas the number of vaccinated prisoners is stated as being 622.”

In January, The First Step Act was to be fully implemented, giving many prisoners the ability to earn time off of their sentence for participating in programming and productive activities while incarcerated. The Act, signed into law in December 2018, has taken three years to be implemented and the BOP is off to a rocky start. In mid-January, many prisoners on home confinement and in halfway houses, were being told their prison sentence was over as a result of retroactive credits from the Act being applied. According to Allenbaugh, there was a dramatic drop in halfway house and home confinement populations in January, however, the number of prisoners inside of institutions ticked upward. People that I have talked to inside prison say that those who were told they were going home are now receiving little information related to their revised release date associated with First Act credits. The reality is that prisoners inside of institutions have no idea when they will be released. One can imagine the frustration and tension of overworked BOP case managers who are also being pulled away to augment staff shortages that plague the agency.

Prisons are overcrowded, despite efforts undertaken by the CARES Act and, now, First Step Act. Allenbaugh has a graphical representation (see above) of 192 BOP facilities which were at an average of 94.3% of capacity in July 2020 just as the pandemic was kicking in. Today, 18 months later, BOP facilities are at an average of 98.8% of their capacity … 93 institutions are over their rated capacity. One of the contributing factors to that is the unintended consequence of President Joe Biden’s initiative to close private prisons. Thousands of prisoners in private facilities have now been crowded into BOP-run facilities.

The BOP is now on a national lockdown, there is a shortage of workers to tend to these overcrowded facilities, and tensions are high among prisoners who have been living under restricted COVID-19 conditions (lockdowns, limited programming, limited access to family interaction and limited recreation). Things boiled over at one institution, USP Beaumont in Texas, where two inmates were killed in a prison fight and one in critical condition.

A new BOP director has not yet been appointed, but one cannot be appointed soon enough to change the poor management and deception of those currently in charge. It will take a monumental effort to change an organization that is failing the prisoners it houses and the employees who are becoming increasingly frustrated. The statistics don’t lie.