Criminal-justice reform advocates from across the political spectrum urged President Trump on Tuesday to use his clemency power to commute the sentences of inmates eligible for “compassionate release” and others who could be at risk, particularly the elderly and those with underlying medical conditions.
“This is a real disaster waiting to happen,” David Patton, the executive director of the nonprofit Federal Defenders of New York, said Sunday, the day after the first federal inmate tested positive at the Metropolitan Detention Center in Brooklyn. “These are places that are particularly susceptible to contagion.”
Inside a county jail in Alabama on Friday, two inmates threatened to commit suicide if newly arrived Immigration and Customs Enforcement detainees they feared had been exposed to the virus were not removed. According to video live-streamed on an inmate’s Facebook page, the two detainees stood on a ledge over a common area, nooses fashioned from sheets wrapped around their necks, and threatened to jump.
“We’re not having no more people come in here with that symptom,” another inmate says in the video, which was obtained by The Washington Post. “We’re not trying to put no more lives at risk.”
The three new detainees had described being brought to the facility in the same van as an individual who was visibly ill and wearing a mask, inmates said in interviews with The Post. An ICE spokesman, Bryan Cox, said none of the three had flu-like symptoms, but he did not know whether they had been tested for the virus.
About 2.3 million people are incarcerated in local jails and state and federal prisons, according to the Prison Policy Initiative, an organization that opposes mass incarceration. Among them is Anh Do, 78, a former doctor who said he has coronary artery disease, hypertension and diabetes.
Do, a Houston resident, was convicted in 2018 on Medicare fraud charges. In January, the Bureau of Prisons denied his request for compassionate release, which allows for home confinement of prisoners who are gravely ill.
“We are living three feet apart, in bunk beds, like a dormitory,” Do said in a telephone interview from a low-security federal prison in Seagoville, Tex. “I’m at very high risk. If one person gets sick, it’s like a death sentence in here.”
On Monday, 14 senators from both parties sent a letter to the Justice Department, which oversees the federal prison system, asking that it make full use of its power to release elderly, terminally ill and low-risk inmates to home confinement.
“We write to express our serious concern for the health and well being of federal prison staff and inmates in Federal custody, especially those who are most vulnerable to infection, and to urge you to take necessary steps to protect them,” the lawmakers — including Sens. Richard J. Durbin (D-Ill.), Charles E. Grassley (R-Iowa), Mike Lee (R-Utah) and Elizabeth Warren (D-Mass.) — wrote to U.S. Attorney General William P. Barr and Bureau of Prisons Director Michael Carvajal.
Advocates for criminal justice reform have been pressing the Justice Department to release more elderly and terminally ill inmates early since late 2018, when President Trump signed a law that expanded eligibility for home confinement.
The Justice Department has resisted those appeals. As recently as December, the department warned that prisoners who had committed serious crimes could be released if Congress passed a bill meant to expand the number of elderly prisoners eligible for release to home confinement.
But the immediate threat posed by the coronavirus has brought new urgency to the calls for releases.
In a news conference on Sunday, Trump said that he is considering an executive order that would free elderly nonviolent offenders from federal prison. “We have been asked about that and we’re going to take a look at it,” Trump said. “It’s a — it’s a bit of a problem. But when we talk about totally nonviolent — we’re talking about these are ‘totally nonviolent prisoners.’ We are actually looking at that, yes.”
The Justice Department in recent weeks asked Congress for discretion to release low-risk offenders to home confinement even if they don’t meet current eligibility rules, which allow inmates to spend the last 10 percent or six months of their sentence at home.
The department also asked Congress to prioritize the ordering of test kits and personal protective equipment for Bureau of Prisons employees — suggesting it is girding for a possible outbreak behind prison walls.
At the same time, the Justice Department is contemplating a scenario in which some inmates may actually remain in custody longer than they otherwise would while trials or other hearings are delayed because of the coronavirus pandemic, according to proposals it submitted to Congress.
A department spokesman did not respond to specific questions about whether it is planning to expand or expedite early release for inmates because of the coronavirus. “We are confident in the Bureau of Prisons robust efforts to keep correctional workers and the inmate population safe and healthy, and that remains our top priority,” the department said in a statement.
The Bureau of Prisons also did not reply to specific questions but noted that “there is presently no provision in federal law to allow for reducing the sentence of an offender, absent a judicial order.”
The bureau’s covid-19 plan, posted to its website, includes suspending social visits, limiting inmate transfers and screening newly arrived inmates for exposure risk factors and symptoms. In a letter Friday to prison leadership, a union representing correctional officers protested the continued transfer of inmates from county jails and state prisons into the federal system, saying it “poses a great risk” and that many inmates are from “hot spot” areas and could be contagious.
County and state facilities across the country are already racing to remove people from jails and prisons.
In Ohio, Cuyahoga County officials launched an early-release program two weeks ago after the county jail’s medical director identified hundreds of county prisoners with serious health conditions. The result: In a matter of days, the county jail population dropped from nearly 1,900 to less than 1,300.
“We really compacted the time frame,” said Cuyahoga County Presiding Judge Brendan J. Sheehan. In the San Francisco Bay area, Alameda County officials last week released 314 people from the local jail. In Washington County, Oregon, outside Portland, more than 120 inmates were released from the local jail, freeing up enough space for each remaining inmate to stay in their own cell.
Such efforts are underway not only in progressive enclaves, but also in conservative-leaning parts of the country.
In Racine, Wis., Sheriff Christopher Schmaling has directed the local jail to stop accepting all new prisoners except those accused of violent felonies or of misdemeanor crimes, such as domestic violence, that pose a threat to public safety.
In Iowa, the state corrections department said it will begin this week to release about 700 inmates who were already deemed eligible for release by the Iowa Board of Parole.
And in Mercer County, in far western Pennsylvania, the county jail released 60 of 308 inmates — nearly one in five — to free up two cell blocks for the quarantine of anyone exposed or infected with the coronavirus.
“We’re not putting low-level punks in jail at the moment,” said Peter C. Acker, the district attorney.
Regardless, many advocates, defense lawyers and health and some corrections officials fear that inmates and prison workers across the country will die because releases have been too few and too late.
Last Wednesday, one inmate and one corrections officer in the city jail system tested positive; by Saturday, that number had risen to 21 inmates and 17 employees, according to the city’s board of correction, which warned that the count was “certain to rise exponentially.” By Tuesday night, it had jumped to 52 inmates and 30 employees, city officials said.
Mayor Bill de Blasio announced last week that the city planned to release 40 vulnerable inmates, a number the board said was “far from sufficient.” On Tuesday night, de Blasio tweeted that he is moving to release 300 inmates immediately.
Many inmates in the city’s jails are awaiting trial. As of Saturday, more than 900 of the jail system’s inmates were over 50 years old, according to board figures. Of those, nearly 200 were in for technical parole violations. More than 500 people were serving sentences of less than a year for low-level offenses.
“Responding to this epidemic, we should be aggressive in our efforts to make the jail smaller because that’s going to be safer for everyone,” Robert L. Cohen, a member of the Board, said in an interview.
The Correction Officers’ Benevolent Association, the union for officers at Rikers, opposes the early release of prisoners but agrees that the jail is at serious risk of a disaster, according to spokesman Michael Skelly. The union is asking for more hand sanitizer, gloves and specialized face masks to protect officers from infection.
“The second-biggest jail system in the country is really at the precipice of a catastrophic event,” Skelly said.
According to criminal justice advocates, early-release programs have long faced resistance from the Justice Department. The federal Bureau of Prisons houses 187,000 inmates ranging from nonviolent drug offenders to white-collar criminals such as Bernie Madoff.
In 2018, the bipartisan First Step Act expanded the number of people who could qualify for early release into home confinement through the Elderly Home Detention Pilot. The law lowered the age of eligibility for the program from 65 to 60. It also increased the portion of a sentence that can be served at home from one-quarter to one-third.
The House passed legislation in December that would require the Justice Department to also use “good conduct time” in making that calculation, which would lead to earlier releases. As the Senate prepared to act, a Justice Department memo warned lawmakers that the measure would allow people who had committed serious crimes — including drug trafficking and fraud — to get out of prison too early. The bill remains stalled.
A politically diverse group of organizations that has been pushing for the House bill is now redoubling its call for early releases, arguing that it is a matter of public health as the virus bears down.
“This is life and death now. It is not about criminal-justice policy and whether you believe in second chances,” said Holly Harris of the Justice Action Network, an organization that advocates for criminal justice reform.
As of Saturday morning, the federal prison system reported that no inmates or staff members had tested positive for the virus. On Tuesday, the bureau said three inmates and three staff members had tested positive.
David Safavian, a Republican lawyer who served time in federal prison for making false statements and is now general counsel for the American Conservative Union, called releasing the elderly and infirm the “morally correct thing to do.” Safavian was pardoned by Trump last month.
Attorneys for inmates with pending applications for compassionate release said the bureau must be more open to approving home confinement for terminally ill inmates.
According to federal data, the bureau last year received compassionate release requests from 1,735 inmates, with only 55 approved. Forty-one inmates died while awaiting a decision from the bureau.
Attorney Zachary Newland said some of his clients have been waiting years for a decision. He filed a request in December for Do, the former doctor. Do’s wife has Alzheimer’s disease, and he is also asking for an early release to help take care of her.
“He is not going to survive if he gets infected,” Newland said.
Julie Tate, Neena Satija, Lisa Rein, Justin Moyer, and Matt Zapotosky contributed to this report.