Expanding BOP’s Response to the Novel Coronavirus, and Helping States Safely Reduce their Prison Populations
We write to ask that the Department of Justice (“DOJ”) take a leadership role in helping the nation’s criminal justice systems adapt to the challenges presented by the novel coronavirus. America’s prisons and jails present unique health dangers,1 and are especially vulnerable to the spread of infectious disease2 — problems that the outbreak of the novel coronavirus throw into sharp relief.3 Absent additional interventions, COVID-19 will continue spreading through incarcerated populations, and our nation’s correctional officers and staff, at an alarming rate.
We thank you for the steps you have taken to respond to this crisis, including expanding the use of home confinement by the Bureau of Prisons (“BOP”). As you acknowledge, the BOP has a “profound obligation to protect the health and safety of all inmates” requires nothing less. Yet more must be done to stop the spread of the novel coronavirus behind bars. Even if the BOP’s recent lockdown slows transmission among people who remain imprisoned in its facilities, it will also stretch tensions behind bars even further. And, correctional administrators nationwide face similar pressures.
We therefore urge you to take two important steps. First, we ask that you expand the use of home confinement even further, as detailed below. Second, the DOJ can encourage states to respond more proactively to this crisis. We therefore ask that you circulate a “Dear Colleague” letter among state criminal justice stakeholders — including governors, prosecutors, judges, correctional administrators, and public defenders — urging them to work together to adopt policies to limit the virus’s impact.
Those policies should include (1) releasing people from prison who do not pose a public safety threat, thus decreasing population density and viral transmission risk; and (2) improving health behind bars by making hygiene products and medical services broadly available. This guidance would underscore the federal government’s commitment to zealously confronting a threat to the wellbeing of imprisoned people and those who work in correctional institutions nationwide. We explain both proposals below. Thank you for your attention to this important matter.
I. The DOJ Should Continue Expanding the Use of Home Confinement. First, we urge you to use your authority under the CARES Act to its maximum effect. Under ordinary circumstances, the BOP can transfer people to home confinement for “10 percent of the term of imprisonment,” or six months — whichever is shorter.
II. The DOJ Should Encourage Criminal Justice Stakeholders to Safely Reduce their Prison Populations and Improve Hygiene Behind Bars. Next, we ask that you circulate a “Dear Colleague” letter to key state policymakers, offering guidance and best practices on how to safely reduce state prison populations and improve prison hygiene. Recipients should include, but need not be limited to, governors, probation and parole officials, state chief judges, attorneys general, prosecuting attorneys, correctional
administrators, and public defenders. Consistent with DOJ policy, this letter would be limited to offering “non-binding advice on technical issues” and express the DOJ’s commitment to safeguarding the safety and civil rights of imprisoned people and those who work in correctional facilities.
The health challenges faced by the BOP are not unique to federal prisons. Fortunately, several states have already risen to the occasion, taking steps that range from a temporary halt on prison commitments to early releases. The diminishing marginal benefits of those final months of imprisonment must be contrasted with the increasing risks associated with prolonged incarceration. Every day behind bars means another day of elevated exposure to a potentially deadly disease.
Acknowledging that new calculus, we ask that you advise state policymakers to use every available policy tool to cut short prison sentences that are already nearing their end. Depending on state and local law, authorities may be able to accomplish this goal by expanding merit-time credits or accelerating parole hearings. Your letter should specifically encourage authorities to think creatively about their legislative and regulatory options. Cooperation across agencies may enable people to more aggressively confront this crisis.
Work with prosecutors to delay prison commitments.
We note that the DOJ recently changed its pretrial detention policy, encouraging federal prosecutors to “consider the medical risks associated with individuals being remanded into federal custody during the COVID-19 pandemic,” and “consider not seeking [pretrial] detention to the same degree we would under normal circumstances.” This step will help people avoid the elevated infection risk associated with incarceration.23 We urge you to recommend that states adopt similar guidelines.
Many people who have been convicted of crimes but not yet sentenced remain in the community or detained in a local jail. Depending on state law, correctional administrators may be able to suspend new prison commitments on their own authority, keeping these people out of the prison system for the duration of the pandemic.
In cooperation with private vendors, waive commissary charges for hygiene products, waive fees for phone calls and other forms of communication, and suspend copays for medical services for the duration of the crisis.
For many people behind bars, soap and hand sanitizers are unavailable, or are luxuries that they simply cannot afford, placing the entire prison system at greater risk of infection.26 To address this problem, we recommend that you urge state correctional administrators to suspend all commissary charges related to soap and personal hygiene products for the duration of the pandemic. This policy change can reduce disease transmission at very little cost to states. Arizona, Minnesota, and Pennsylvania have already taken similar steps.27 Your guidance should recommend that other states follow their example.
With in-person visitation canceled across the country, imprisoned people and their families face incredible stress, aggravated by uncertainty about safety and health behind bars and the difficulty of staying in touch with each other. We therefore ask that you also encourage states to, in cooperation with private vendors, completely suspend charges for mail, phone calls, and
video communication for the duration of this crisis. Some vendors, such as JPay, have already begun offering specific services at reduced prices.28 These are important first steps, but (in many cases) still leave cost barriers between families and their increasingly isolated loved ones behind bars. Thankfully, the BOP recently made video visitation and phone calls free to all
people in its custody.
Lastly, state prisons must provide free healthcare to imprisoned people throughout this crisis. Free medical care will encourage quick diagnosis and treatment and help halt the further spread of infection. Thankfully, according to one source, at least forty-seven states now provide free medical care to imprisoned people with COVID-19 symptoms. Opportunities for cleaning living spaces during the lockdown, and poor access to cleaning and protective supplies for correctional officers and imprisoned people alike.31 Such poor conditions will surely contribute to the spread of COVID-19.
* * * * *
Over the past month, the Department of Justice has taken important steps to limit the impact of the novel coronavirus on the health and safety of those held in and working in our correctional system. We ask that you continue to adapt to these challenging circumstances and lead the nation’s law enforcement agencies in developing their response.
Brennan Center for Justice at NYU School of Law
Center for American Progress
Justice Action Network
National Association of Criminal Defense Lawyers
R Street Institute