WASHINGTON — On his first full day in office, President Biden promised to order the federal Bureau of Prisons to reevaluate its Covid-19 protocols and release additional data on the spread of the virus in prisons, two in a slew of pledges aimed at ensuring the United States’ pandemic response was equitable.
But that specific order never came. And now, as Covid-19 is spiking in multiple federal prisons around the country, spurred by the Omicron variant and still-substandard infection control, advocates say that the BOP’s Covid-19 protocols are as broken as ever.
“They’ve continued with business as usual as a mass death event has unfolded under their watch,” said Joshua Manson, the communications manager for the UCLA Law COVID Behind Bars Data Project, which tracks Covid-19 outbreaks in prisons. “It’s been a catastrophe.”
Nearly 3,000 incarcerated people have died of Covid-19 since the start of the pandemic, including roughly 300 in federal custody. People in prison are roughly three times more likely to die of Covid-19 than the general population, after adjusting for the fact that the prison population skews younger.
Biden made reversing that trend part of his pandemic strategy — and a pillar of his larger goal of prioritizing equity throughout his Covid-19 response. But interviews with leading prison advocates, independent legal and medical experts, a former federal prisoner, and a U.S. senator reveal persistent and fundamental issues with the BOP’s approach toward Covid-19. That includes poor infection control in prisons; inaccurate, opaque data on how many incarcerated people are infected and have died of Covid-19; a substandard vaccine rollout; and almost no public information on how the BOP is prioritizing booster shots for its population.
“They have a long runway to meeting the goals they set out for themselves with respect to health equity, racial equity, and civil and human rights more broadly,” said Sakira Cook, senior program director at the Leadership Conference on Civil and Human Rights, a coalition of over 200 civil rights organizations.
They’re on the path, she said, but they have “miles to go.”
A spokesperson for the Department of Justice, which oversees the BOP, argued that the agency follows Centers for Disease Control and Prevention guidelines for infection control. She said in a statement that BOP has made significant strides in vaccinating the prison population, and outlined efforts to be transparent about the conditions in prisons. A White House spokesperson pointed to a separate executive order focused on federal workers, which was released before Biden pledged to overhaul prisons’ Covid response, to claim that the White House had fulfilled its promise. That order does not mention the BOP at all.
Biden does not have unilateral power to fix the disparities in the entire prison system because many facilities are run by state authorities, not to mention that roughly 3,000 jails are typically run by local agencies, like counties. But he does have the authority to make changes at federal prisons run by the BOP.
The prison system’s struggles to address the early stages of the Covid-19 pandemic are well-documented, and they often mirrored struggles outside the prison walls, like poor access to Covid-19 tests. But the rapid deterioration in several prison systems over the last few weeks suggest that many aspects of the BOP’s Covid response remain broken two years after the pandemic began.
People at FCI Danbury in Connecticut, for example, are still waiting three days for Covid-19 test results, according to Sen. Richard Blumenthal (D-Conn.), who toured the facility last week.
And at Danbury, at least, it’s not just Omicron driving the surge. There were 234 new cases in a population of roughly 1,000 people during the month of January, according to data compiled by a team at the University of Iowa, but there’s no frequent testing and those in quarantine aren’t being monitored for worsening symptoms, according to Sarah Russell, the director of the Quinnipiac Legal Clinic who previously filed a class-action lawsuit against the facility challenging its Covid-19 protocols.
She gave two other stark examples: At the start of a late December outbreak, the facility’s staff decided, at least at first, not to quarantine women with Covid-19, and also declined to tell people whether they had been infected, she said. And on Jan. 22, they similarly failed to isolate two men who tested positive until the following day.
When asked about the allegations at Danbury, a DOJ spokesperson said: “The BOP follows CDC guidelines as well as BOP policy to prevent and mitigate COVID-19 infections. If it is determined that BOP staff have not adhered to COVID-19 protocols, disciplinary action may be warranted.”
Paul Petruzzi, a criminal defense attorney for women at FPC Alderson in West Virginia, said the situation at that facility is worse, though there’s even less information accessible. Available data suggests that Alderson experienced serious spikes in new Covid-19 cases during both late December and late January. At least 137 women tested positive in the last three weeks of December, and another 92 women tested positive the week of January 17. Alderson houses roughly 700 women.
Petruzzi says there are likely more women with Covid in the facility than the available data show, because the facility is not testing widely. He said three women have died since the start of the outbreak and two of his clients are hospitalized, including one who is intubated.
“It might have the reputation of being ‘Camp Cupcake’ where Martha Stewart went, but it’s not now. There’s too many dead women in the past month for that place to be considered or described as any type of light form of punishment. It’s hellish,” Petruzzi said.
Petruzzi also alleged that women who want to get vaccinated are now being told there is a waitlist.
A DOJ spokesperson said that Alderson follows CDC guidelines, denied there was a waitlist for vaccines, and said testing is conducted when “warranted.”
The data suggest that Omicron alone isn’t responsible for the current levels of Covid-19 in federal facilities.
“The numbers that we are seeing from the Bureau of Prisons, I think, show a prison system that has been unable, or unwilling — unclear which it is — to control the spread of Covid in its facilities,” said Alison Guernsey, a law professor at the University of Iowa who has been tracking Covid-19 outbreaks in prisons.
During the week of Jan. 17, seven BOP prisons had triple-digit increases in new Covid-19 cases, including 216 new cases at FCI Berlin in Berlin, N.H., which houses only roughly 750 people, according to data compiled by Guernsey and her research assistant. Four facilities had similar triple-digit spikes the following week, including 321 new cases in four days at FCI Oakdale I, a men’s prison in Louisiana that houses roughly 900 people.
Guernsey also noted that persistent issues with BOP’s Covid data, like cumulative counts of Covid-19 cases for certain facilities mysteriously decreasing, likely mean that her totals of new cases likely undercount the actual number of new infections.’
Biden’s national pandemic strategy was supposed to prevent these sorts of emergencies from occurring.
His 198-page Covid-19 playbook included two pledges specifically aimed at stemming the virus’s spread in prisons.
The first was to “Ensure the Federal Bureau of Prisons and U.S. Immigration and Customs Enforcement (ICE) detention facilities are following sound public health guidance.”
The administration promised it would release an executive order that would require the BOP and ICE to “evaluate their COVID-19 protocols, release data on the spread of COVID-19 in facilities, and use federal grant programs to create incentives for state and local facilities to adhere to sound public health guidance.”
Not only did the order never materialize, but several major advocacy organizations told STAT they never even knew the order was planned.
And while the BOP and the CDC have released new guidelines in recent months on managing Covid in prisons, the BOP has struggled to follow those guidelines, as evidenced by ongoing outbreaks. A July Government Accountability Office report also found that prison staff frequently were confused by how to implement BOP’s guidance.
The agency also hasn’t shared useful data on the spread of Covid-19 in its facilities. Legal experts have complained that it has been difficult to track the number of deaths from Covid-19 in prisons. The BOP has been slow to update the publicly available tally of deaths occurring in its facilities — some deaths have taken a year or more to be reported — and it does not count people who were dying of Covid-19 in prison and then released, shortly before their death, to die at home.
The DOJ spokesperson argued that the BOP updates its death counts as quickly as possible after a medical examiner conducts an autopsy and the family of the deceased is notified. They confirmed, however, that the BOP “does not track changes in medical status or potential death rates for anyone who is no longer in BOP’s custody.”
The BOP does also report daily infection tallies for each of its facilities, but experts say those counts likely miss a large number of infections. They note, for example, that the BOP does not report granular enough testing data to calculate so-called test positivity rates, a measure often used in public health to estimate what percentage of a population likely has Covid-19, given not every person in a community is typically tested at one time.
The White House spokesman said the administration had fulfilled its promise to push to provide more data on the spread of Covid-19 in federal facilities. But the data on the webpage the spokesperson referred STAT to had been available for months before Biden took office, two researchers who track the spread of Covid in federal prisons told STAT.
“If the Biden administration’s claim is that they were solely responsible for initiating facility-by-facility reporting, then they are mistaken,” said Guernsey, the Iowa professor, who provided screenshots of the webpage in question dating to May 2020. “I just verified with my records that we have been pulling facility-specific data from the BOP’s website since we started our data-tracking project in April of 2020.”
The White House spokesperson also noted that the BOP now provides data on Covid-19 vaccine administration in prisons, and that CDC has created additional tools for visualizing Covid-19 rates in state and federal prisons.
Biden’s other promise in his January plan was to distribute vaccines to incarcerated individuals and their staff. It has done modestly better in meeting that goal.
A DOJ spokesperson told STAT that 93,501 federal inmates — 69.4% of the federal prison population — are fully vaccinated, which they noted “is a higher percentage than in the US population as a whole, which has a vaccination rate of 63.5%.”
Medical experts have complained, however, that the BOP’s vaccination efforts are likely leaving behind the most vulnerable people in prison. That’s because the BOP has not undertaken the type of educational efforts that they say are needed to convince people who have questions about the vaccine because of concurrent medical issues or distrust of the correctional system.
A court-ordered independent report of one federal facility in California from April, for example, showed that vaccinations were done in large settings where incarcerated people were called to either take the vaccine or sign a refusal. No one followed up with those who refused, and “many people reported that when they tried to ask questions about the safety of the vaccine, or posed questions about their own health or medication issues in relation to the vaccine, they were told to either take the vaccine or sign a refusal form,” wrote Homer Venters, the prison health expert who conducted the investigation.
Venters said only five of 33 people he spoke to who initially refused to take the vaccine said they would never take it. Instead, many had easily answered — but unanswered — questions, like the potential for allergic reactions and interactions between the vaccine and their current medications.
“It has a paradoxical effect of creating a pool of extremely high-risk unvaccinated patients. Many of these high-risk patients were initially offered the vaccine 3 or 4 months ago, and the insistence by BOP leadership that their very valid and predictable questions and concerns go unaddressed during this time significantly increases the risk of preventable death from COVID-19,” Venters wrote.
Some public health groups even took to sending their own information into prisons to explain why people there should get vaccinated.
The DOJ spokesperson said that the BOP has provided “educational posters and promotional videos, developed in consultation with the CDC” and has “created incentives to encourage inmates to get vaccinated,” like commissary incentives and movie showings.
While the BOP is now offering booster shots against Covid-19, advocates have complained that there is a lack of data on how many prisoners have been boosted. A DOJ spokesperson told STAT that 29,200 people in federal custody have had a booster dose, but that information is not publicly available on the DOJ’s website.
Advocates shared anecdotal reports with STAT about certain incarcerated people having difficulty finding boosters. Guernsey, the Iowa law professor, for example, shared an anecdote of an immunocompromised prisoner who was told he is not eligible for a booster because he has already contracted Covid.
The CDC currently recommends boosters for everyone 12 years and older, at least several months after they complete their initial vaccination series.
There have been some other modest improvements in the BOP’s management of Covid-19 since Biden took over the White House.
The CDC, for example, launched a new testing program in December that will offer no-cost PCR testing to congregate settings like prisons. The Biden administration also announced in late December that it would not require people that were released to home confinement in response to Covid to return to prison at the end of the Covid-19 pandemic.
Death rates have also seemed to flatten as vaccines were rolled out, though experts say it’s impossible to say so definitively because of the BOP’s sporadic reporting of Covid-19 deaths. Of the 281 people Guernsey’s team identified by name as having died of Covid-19, roughly 66% died in 2020 and 30% died in 2021. Nine incarcerated people have died thus far in January, according to publicly available data.
“There’s some progress but it’s been very slow, and very halting, and very ad hoc,” said Corene Kendrick, deputy director of the ACLU National Prison Project.
Pressure also appears to be building on the Biden administration to address the agency’s long-standing issues.
The GAO, for example, announced last week that it was considering adding the BOP to its “high-risk list” of federal agencies “that are vulnerable to waste, fraud, abuse, or mismanagement, or in need of transformation,” partially because of its response to Covid-19. And the House Judiciary Committee held a hearing on the BOP’s response to Covid-19 on Jan. 21 and will hold another hearing with the director of the agency this Thursday.
Blumenthal, the Connecticut senator, has also called for a federal investigation into the conditions at the Danbury facility, and told STAT he will be asking the Senate Judiciary Committee to conduct a similar inquiry into Covid conditions at the BOP nationwide.
And BOP will go through a massive transition in the coming months: a new director. The agency’s current director, Miguel Carvajal, a longtime BOP employee who was first appointed to the agency’s top job by President Trump, announced last month that he is retiring.
“Carvajal’s resignation is an opportunity for the administration to finally live up to many of its campaign promises,” Kendrick wrote in a recent op-ed. “As another highly transmissible variant spreads throughout the country, there is no time to waste.”
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