Federal Bureau of Prisons Warden Says NO to Cares Act

When the Director of the Federal Bureau of Prisons (BOP) appeared before Congress on April 15, 2021, he stated, “Right now, over 4,500 inmates are at home under the Cares Act.” https://www.judiciary.senate.gov/meetings/04/08/2021/oversight-of-the-federal-bureau-of-prisons

Director Carvajal went on to unwittingly flaunt the success of those released under the Cares Act, when he testified that “only 151 have been returned to prison.”  This success highlights that the use of community custody programs, as opposed to incarceration, can be highly successful.

Given his testimony before Congress, and the success of those released under the Cares Act, the next likely step should be for the director to order that more inmates be released.  With the new Delta variant of the virus gaining ground in many states, it is critical that federal prisons continue to lower its numbers in order to social distance, and keep inmates and staff safe.  The BOP’s website reports that the agency currently has active cases at many of its facilities. https://www.bop.gov/coronavirus/index.jsp

However, inmates at several facilities throughout the BOP complain that the agency is not actively releasing inmates under the Cares Act.  At the start of the pandemic there were approximately 155,000 prisoners in the BOP’s care.  Currently that number remains at roughly 145,000.  Yet only 4,500 inmates have been released under the Cares Act.  And per the BOP’s website, to date “44,130 inmates and 6,883 staff members have recovered from the virus.”  Unfortunately, there has also been “240 inmate and 4 staff member deaths.”

The Office of Inspector General (OIG), recently released multiple reports regarding the BOP’s COVID-19 failures.  Those reports have been quite critical of the agency and its response to the Cares Act directive.  In March, the Director was chastised during testimony before a House of Representatives subcommittee for the agency’s response to the pandemic.  Representative David Trone (D-Md) told the director, “You and your staff are incompetent and should be fired.”

There has also been concern by those who were released under the act, after a January 15, 2021 memo surfaced at the end of the Trump administration.  The memo states “Although the pandemic emergency remains ongoing, the issue arises because BOP must plan for an eventuality where it might need to return a significant number of prisoners to correctional facilities.”  https://www.justice.gov/olc/file/1355886/download

Something Director Carvajal downplayed in his testimony before Congress in April.  The director was adamant that the agency was still releasing inmates in order to lower its numbers.  Carvajal told lawmakers—“I don’t want somebody to believe that the Bureau of Prisons somehow doesn’t want to let people out.”

Yet, inmates at many federal institutions complain they were turned down for the Cares Act, even though they claim to meet the criteria for release.  Some inmates even claim to have been given release dates, only to have those dates rescinded a few weeks later.  Many having gone through a 14-21 day quarantine process—being housed in solitary housing units or make shift quarantine housing—only to later be told they must report back to the general population of the prison, to finish serving their sentence behind bars.

Inmates at one of the agency’s camp facilities in Texas, where minimum and low security inmates are housed, complain that the Warden at that facility is refusing to allow inmates qualified to go home under the Cares Act to be released.  Inmates report being told by the Warden that “she would no longer release inmates under the Cares Act from that facility.”  And that “inmates classified as low security would not even be considered for the Cares Act at all.”  And some inmates at the camp report being given dates—only later to be told by staff that “they weren’t going anywhere.”   I attempted to reach out to the Warden at Federal Prison Camp (FPC) Bryan for a comment.  The spokesperson at the facility referred my questions to the Federal Bureau of Prisons Public Affairs Office for a response.

While the Office of Information, Policy and Public Affairs Division, at the Federal Bureau of Prisons, would not specifically address questions regarding the Bryan facility, or individual inmates, it did respond generically to my other questions–“Does the BOP plan to take inmates back who were released under the Cares Act?” and “How does the BOP pick and choose who is released under the Cares Act?”

The BOP’s response–“this is an important legal issue about the language Congress itself used in the CARES Act.  It is important to recognize even under the Office of Legal Counsel’s (OLC) reading of the statute, the BOP will have discretion to keep inmates on home confinement after the pandemic if they’re close to the end of their sentences.  For the more difficult cases, where inmates still have years left to serve, this will be an issue only after the pandemic is over.   The President recently extended the national emergency and the Department of Health and Human Services has said the public health crisis is likely to last for the rest of the year.  The BOP is focused right now on expanding the criteria for home confinement and taking steps to ensure individualized review of more inmates who might be transferred.”




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