August 22nd, 2022 • Joshua Manson
There’s a new head of the Federal Bureau of Prisons. There’s reason for hope – and concern.
Since even before the pandemic, the Federal Bureau of Prisons – the agency that oversees all federal prison facilities and the more than 140,000 people living inside them – has been rife with scandal, from rampant sexual and physical abuse to failing, unsafe facility infrastructure.
Things have only gotten worse during the pandemic. The agency has grossly mismanaged the spread of COVID among people in its custody: at least 314 people have died and there have been over 55,000 documented COVID cases among people in custody. Early in the pandemic, the infection rate among people in BOP custody was more than 15 times that of the U.S. population as a whole. A few months later, during the first winter of the pandemic, 90% of BOP prisons experienced a COVID outbreak.
The true numbers are likely higher, however. While mishandling the spread of the illness, the agency has also resisted transparency tooth-and-nail, reporting limited – likely unreliable – data.
All the while, the agency has steadfastly resisted emergency measures like compassionate release that could have proven, and continue to prove, life-saving to those in its custody.
Last month, Attorney General Merrick Garland selected a new Director of the BOP, Colette Peters, who most recently served as the Director of the Oregon Department of Corrections. The appointment of new leadership, to replace Trump-appointee Michael Carvajal, marked an opportunity for change and for the Biden administration to demonstrate its stated commitment to protecting the health and safety of those in the custody of the BOP.
In fact, Director Peters has made a name for herself as a reformer among prison administrators. After a visit to Norway, she launched “The Oregon Way” in Oregon state prisons, an approach to prison management that attempted to “normaliz[e] the correctional environment and, in turn, improv[e] the outcomes for incarcerated people.” At her swearing-in ceremony, Peters remarked, “Our job is not to make good inmates. It’s to make good neighbors.”
As noted by The Marshall Project, however, there is reason for concern among reform advocates. During her tenure at the Oregon DOC, the prison agency came under scrutiny by advocates and the courts alike for practices including overusing solitary confinement and banning mail that contained artwork on the envelope, a practice a federal court found to be in violation of the First Amendment.
And if her tenure as Director of the Oregon Department of Corrections during the beginning of the pandemic is an indication of how she will lead the Federal Bureau of Prisons for its duration, people in federal custody and their advocates have particular reason to be concerned.
In a landmark lawsuit, people incarcerated in Oregon state prisons sued Peters’ Oregon Department of Correction over the Department’s management of the COVID crisis. In that lawsuit, which has received national attention as among the most successful COVID-related litigation filed by incarcerated people during the pandemic, the plaintiffs have alleged that Peters and the other defendants “failed to substantially follow even the minimal standards to protect against the spread of COVID-19,” failing to implement policies around mask-wearing, quarantine, and social distancing. According to the complaint, Peters’ staff “ignored the threats posed by the COVID-19 virus by denying … appropriate access to prevention, testing, and treatment for COVID-19.”
The court has not ruled on the case’s merits yet, but has allowed the case to proceed as a class action including most people in Oregon state prisons who tested positive or died of COVID while incarcerated. In so doing, the court has opened the door for incarcerated Oregonians and their families to receive financial compensation for Peters’ agency’s mismanagement of the pandemic.
Since the beginning of the pandemic, there have been 5,621 documented COVID-19 cases in Oregon state prisons and 44 incarcerated people have died of COVID-19.
Additionally, while the Oregon Department of Corrections has continued to publicly report active COVID cases and deaths (while ten prison systems across the country have stopped all COVID reporting), our project and others have found the agency’s transparency to be lacking. For example, Oregon DOC does not report any data on vaccinations administered or the number of active staff COVID cases. Additionally, per local reporting, the DOC has reported zero negative COVID tests since May 21, 2021, raising questions about the agency’s testing strategies and reporting quality.
In her new position, Peters is now tasked with protecting the health and safety of the more than 140,000 people in BOP custody – a nearly ten-fold increase from the population under her custody in Oregon state prisons. There are basic steps that Peters should take if she – and the Biden administration – are serious about reform and protecting the health and safety of those in their custody.
Under her predecessor, compassionate release was widely opposed by the agency: from March through May of 2020, the BOP denied 98% of all applications submitted. No fewer than 96% of the petitions that were eventually approved by a court in FY20 were done so over the objection of or inaction by the BOP, and were significantly slowed down as a result.
Peters should instruct BOP officials to approve petitions at a far greater rate and to expedite the review and approval processes, to avoid delays during a public health emergency.
Similarly, under her predecessor, the BOP has resisted transparency at many junctures. In fact, in early 2021, the agency changed how it reports the number of cumulative COVID cases among people in its custody. Because of that change, to this day, the public cannot know how many people have tested positive in BOP custody throughout the pandemic. In addition to reverting to reporting the cumulative number of positive tests in its custody (and not the number of people currently in custody who have tested positive), the agency should also, crucially, publish the number of tests administered so that the public can approximate positivity rates.
Lastly, evidence has emerged that the BOP may not be adequately providing treatment for those in its custody who do test positive. Following recent reporting by STAT news that through March 2022, the agency had prescribed, in total, just three doses of Paxlovid, a group of fourteen U.S. senators sent a letter to the agency demanding information on testing protocols and on why it has so dramatically under prescribed the medications it has at its disposal. Peters should ensure that medical staff in BOP prisons are prescribing Paxlovid in all cases where a person could benefit from the drug and have a testing strategy in place that will allow for detection early enough that Paxvlod can be effective.
Indeed, most of these demands have already come from President Biden himself. In a May executive order marking the anniversary of the death of George Floyd, President Biden directed Attorney General Garland to require the BOP to implement “core public health measures” in federal prisons, update testing procedures, and improve data sharing, among other steps. If implemented, Biden’s executive order would make for a dramatic improvement from the BOP’s failures throughout the pandemic.
If Director Peters wants to protect the health and safety of those in her custody, she should begin implementation immediately.
September 9th, 2022 • Amanda Klonsky
We have seen during the COVID pandemic the ways that mass incarceration can accelerate the spread of a dangerous virus. Unfortunately, this experience does not leave great cause for optimism that jails and prisons are prepared to respond effectively to monkeypox outbreaks.