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Excerpts from the Article:
Between January and August of 2019, the Department of Health and Human Services played a game, a simulation of sorts. The exercise was called Crimson Contagion, and it was designed to help the U.S. prepare for a viral pandemic.
During the simulation, as reported by The New York Times, a group of 35 tourists from the United States, Australia, Kuwait, Malaysia, Thailand, Britain and Spain visited China. While there, they became infected with an unknown virus, flew home, and became their respective countries’ Patient Zeros. The World Health Organization declared a pandemic seven weeks later. In the United States, the Centers for Disease Control and Prevention (CDC) issued guidelines for social distancing and state governments directed the workforce to stay home. Nonetheless, the simulation predicted, the pandemic would ultimately infect 110 million Americans and kill 586,000.
Coronavirus: The Origins
On December 31, 2019, the Chinese government acknowledged the treatment of citizens in Wuhan, China, for pneumonia. Within a few days, Chinese researchers identified a new virus that had sickened dozens of people in Asia.
On January 11, 2020, Chinese media reported the death of a 61-year-old man who frequented a seafood and poultry market in Wuhan. This was to become known as the first known death from what came to be known as COVID-19, the disease caused by the novel coronavirus.
By January 23, 2020, the Chinese government cut off Wuhan, isolating a city of over 11 million people. By this point, “17 people had died, and more than 570 others had been infected,” reports The New York Times. A week later, the World Health Organization declared a global health emergency. And by March 13, 2020, President Trump declared a national state of emergency.
Within a few short months, the worldwide death toll would rise to over 188,000. And the number is rising. As of April 23, 2020, the virus has infected close to 2.7 million people.
Prisons: “Amplifiers of Infectious Diseases”
As the nation reels in response to waves of infections and deaths and the public adopts a new way of living – 6 feet apart – one group is left to fend for themselves: America’s incarcerated class.
The CDC has promulgated guidelines for all Americans. These include social distancing (keeping 6 feet apart), remaining home as much as possible, washing hands often, and using face masks as a barrier to disease. The most important factor remains social distancing because if people can isolate themselves, and thereby not come into contact with others who are infected, they can remain safe.
On March 11, 2020, California Governor Gavin Newsom recommended the cancellation of gatherings of more than 250 people to slow the spread of the coronavirus. By March 15, the CDC recommended that gatherings of 50 or more be canceled. The following day, the White House recommended gatherings of more than 10 be canceled.
Even local and state governments have issued their own guidelines. As reported by the New York Times, by April 7, 2020, every state except for North Dakota, South Dakota, Nebraska, Iowa, Arkansas, Wyoming, Oklahoma, and Utah had issued state-wide stay-at-home decrees, correctly viewing social distancing as the best manner of remaining safe.
But for those in American jails and prisons – people typically subjected to substandard nutrition, health care, and access to clean living environments – there is virtually no protection. Cramped in overcrowded dormitories with limited access to vital health-care information and care, many fear illness and death are inevitable.
As stated by Kelsey Kauffman in The Appeal, jails and prisons are “incubators and amplifiers of infectious diseases.” With nowhere to run, American prisoners can do little but hope and pray.
The State of COVID-19 in American Prisons
To combat the iron curtain of information in American jails and prisons, we at Prison Legal News have compiled an exhaustive accounting of the state of COVID-19 in every prison system across the country as we went to press. We are also reporting litigation over conditions of confinement and, where applicable, large-scale prison releases and guidelines to seek such release.
What follows is our analysis of the impact COVID-19 has had on every prison system and the movement to protect America’s incarcerated class through the mechanism of early release.
Federal Bureau of Prisons
On April 22, 2020, the federal Bureau of Prisons (BOP) reported 566 prisoners and 342 staff members had tested positive for coronavirus. Additionally, 24 prisoners had died because of the coronavirus.
The hardest-hit prisons include USP Lompoc in California (69 inmate positives, 17 staff positives); FCI Butner Medium I in North Carolina (46 inmate positives, 27 staff positives, four inmate deaths); FCI Danbury in Connecticut (44 inmate positives, 39 staff positives); FCI Oakdale I in Louisiana (37 inmate positives, 26 staff positives, six inmate deaths); and FCI Elkton in Ohio (36 inmate positives, 26 staff positives, four inmate deaths).
On March 26, 2020, Attorney General William Barr issued a memorandum directing the BOP to use the tool of home confinement as a mechanism for reducing the federal prison population. This memorandum presented several factors the BOP should use in determining which prisoners should be considered. These factors include:
• The age and vulnerability of the prisoner to COVID-19, in accordance with the CDC guidelines;
• The security level of the facility currently holding the prisoner, with priority given to prisoners residing in low- and minimum-security facilities;
• The inmate’s conduct in prison, with prisoners who have engaged in violent or gang-related activity or who have incurred a BOP violation within the last year not receiving priority treatment;
• The prisoner’s score under PATTERN, a risk assessment tool for people in BOP prisons, with those who have anything above a minimum score not receiving priority treatment;
• Whether the prisoner has a demonstrated and verifiable re-entry plan that will prevent recidivism and maximize public safety, including verification that the conditions under which the prisoner would be confined upon release would present a lower risk of contracting COVID-19 than the inmate would face in his or her BOP facility;
• The prisoner’s crime of conviction, and assessment of the danger posed by the prisoner to the community. Some offenses, such as sex offenses, render an inmate ineligible for home detention. Other serious offenses weigh more heavily against consideration for home detention.
On April 3, 2020, AG Barr issued a second memorandum, specifically directing the BOP to “immediately maximize appropriate transfers to home confinement of all appropriate inmates …[at] BOP facilities where COVID-19 is materially affecting operations.”
What follows is a compilation of federal cases, and then a state-by-state roundup, including information about how many prisoners have been released and due to what legal developments.
As of mid-April, the BOP had released 1,022 prisoners on home confinement because of these directives.
United States v. Michaels, 8:16-cr-76-JVS, (C.D. Cal. Mar. 26, 2020). The Court granted temporary release for 90 days, pursuant to 18 U.S.C. § 3142 (i), which authorizes discretionary temporary release when necessary for a person’s defense or another compelling reason. Judge James Selna held the defendant’s age and medical conditions, which place him in the population most susceptible to COVID-19, and in light of the pandemic, to constitute “another compelling reason” and granted his temporary release.