‘Too little too late’: Unpacking Biden’s moves to improve federal prisons’ response to Covid-19

WASHINGTON — The Biden administration is trying to finally unsnarl the federal Bureau of Prisons’ response to the coronavirus pandemic, but experts say its latest moves also underscore just how much is still broken about the government’s response to Covid-19 in prisons.

As part of an executive order on reforming the criminal justice system last week, President Biden tasked the attorney general with updating the prison system’s protocols for testing, identifying alternatives to facility-wide lockdowns used to contain the spread of the virus, and expanding the data that is shared by the Bureau of Prisons regarding vaccination, testing, and deaths behind bars. The order also directs the attorney general to compile a tally of all incarcerated people who would be eligible for early release.

Biden originally promised many of these reforms at the start of his administration, but his administration didn’t deliver until this new order.

Prison rights experts are hopeful — but still skeptical — that the new order will spur fixes to fundamental problems that have plagued the Bureau of Prison’s Covid response for the past two-and-a-half years.

“I don’t think it’s going to make some sort of profound sweeping change in how the BOP has responded — or not responded — to Covid, but I do think that by requiring this sort of analysis … it does force the bureau to engage in some introspection,” said Corene Kendrick, the deputy director of the ACLU’s National Prison Project.

They also lamented how long Biden took to make the changes.

“It’s too little too late, but I’m glad to see it still,” said Joshua Manson, the communications manager for the UCLA Law COVID-19 Behind Bars Data Project. “Where was this order a year ago, two years ago, when dozens of people were dying every week?”

Below STAT walks through the issues Biden’s new executive order promises to remedy, and what they tell us about the current situation in federal prisons.

Ramping up surveillance testing

It’s no secret that the Bureau of Prisons has struggled with testing throughout the coronavirus pandemic. STAT reported in February that test results from a federal prison in Danbury, Conn. were still taking multiple days. Several lawsuits from people housed in federal prisons from New York to California have alleged inadequate testing, too.

But Biden’s order, interestingly enough, focuses on strengthening the detection of Covid-19 cases among residents and staff not already known to be exposed to the virus. The order directs the attorney general and the federal health secretary “to facilitate Covid-19 testing of [agency] staff and individuals in [custody] who are asymptomatic or symptomatic and do not have known, suspected, or reported exposure.”

That language underlines a striking fact: The prison system is doing very little proactive testing to monitor the spread of the virus.

The Bureau of Prisons, by and large, does not typically mass-test people in its custody — the most effective way to catch asymptomatic cases of Covid-19 before they turn into an outbreak. Instead, it focuses on testing people exposed to the virus and “movement-based screening,” where incarcerated people are tested when they transfer facilities or have contact with the community through court visits or work assignments.

Existing policy also does not appear to require that staff be regularly tested for Covid-19, even when they’re unvaccinated and community transmission is high. The most recent publicly available version of the Bureau of Prison’s Covid-19 plan, which is dated August 17, 2021, says only that weekly testing for unvaccinated staff is “recommended” when community transmission is high.

And while the BOP website states that “routine screening testing for staff and incarcerated persons who are not fully vaccinated should be conducted at least weekly when community transmission is substantial or high” an agency spokesperson confirmed to STAT that prisons’ testing plans vary “and are dependent on multiple factors to include institution vaccination rates, community transmission risk, risk factors for severe disease, and availability of resources.” They added that “judicious use of surveillance testing is vital to ensure efficient use of testing and staff resources.”

That’s in stark contrast with other congregate settings like nursing homes, and even schools. The Centers for Medicare and Medicaid Services requires routine testing of nursing home staff who have not received Covid boosters. Federal guidance from March states that all staff who are not boosted should be tested once a week when community spread is moderate, and twice a week when it is high.

Major school districts have also stood up massive surveillance testing efforts: Los Angeles Unified School District routinely tested more than 600,000 students, as well as staff, once a week, New York City schools test a sample of between 10% and 20% of students in each school, and Massachusetts has used so-called pooled testing to monitor the Covid spread in its schools.

Fixing long-standing data issues

Biden’s order also tasks the attorney general with “expanding the sharing and publication of [data] regarding vaccination, testing, infections, and fatalities due to Covid-19 among staff, prisoners, and detainees.” The order also directs the attorney general to report data disaggregated by “race, ethnicity, age, sex, disability, and facility.”

That’s a welcome relief for data crunchers who have complained for two-and-a-half years that much of the data on Covid-19 testing, vaccination, and even deaths in prisons has been opaque and even, at times, misleading.

It’s hard to parse much of the federal prison system’s existing data — so much so that researchers disagree with the official count of how many people have gotten Covid-19 behind bars, and even how many people have died.

The data on testing is particularly perplexing: While the Centers for Disease Control and Prevention regularly publishes data on how many tests are conducted in all 3,000-plus U.S. counties, as well as case positivity rates in those counties, the Bureau of Prisons website only lists the number of people in their custody who have had at least one Covid-19 test since the start of the pandemic, as well as the number of people awaiting test results who have not previously ever been tested.

Experts who track Covid-19 data in prison are hopeful that Biden’s executive order will fix these long-standing issues. And they hope that the order will give them access to the type of demographic information — like death and vaccination rates by race and ethnicity — that has never been disclosed by the Bureau of Prisons. They say that data is crucial to determining the potentially outsized impact the virus has had on certain ethnic and racial groups.

The data reporting considered in the order is so much more robust than what is currently being disseminated that it’s hard to believe it would ever happen, said Manson from UCLA’s Covid-19 reporting project.

“This would be like skipping five steps,” Manson said. “There’s so much in between what they’re doing now and publishing data disaggregated [by race and age]. … It would have a huge impact.”

Moving toward the end of lockdowns

Biden’s new order also directs the attorney general to figure out alternatives to locking down prisons to contain the spread of Covid-19.

This section of the order drives home the impact the pandemic has had on the very few privileges people in federal custody currently have.

Seventy three federal prisons are still on the most restrictive form of modifications, known as “level three.” People in level three facilities can’t use any gym equipment or get shaves at the barbershop. Certain inmates may even have to wait before taking the GED exam, according to a public Bureau of Prisons Covid-19 plan from July.

Dianthe Martinez-Brooks, a formerly incarcerated person who was housed at the federal prison in Danbury, Conn. until June 2020, told STAT that “level three” operations at Danbury meant that one hot meal a day was served, a dorm of women shared a single bathroom, and that people were only released from their cells for an hour a day. That one hour reprieve wasn’t set at a scheduled time, so people were unable to give their families a heads up on when they might call to update them on their situation.

“From a mental health perspective, it is toxic,” Martinez-Brooks said. “There’s no outlet. There’s nothing to keep you busy, occupied. All you can think about [is] what you’re missing.”

Biden’s order also directs the attorney general to consider alternatives to the use of “restrictive housing,” often referred to as solitary confinement, to quarantine and isolate sick individuals. It’s unclear how often the BOP is using these facilities to contain the spread of Covid, though a BOP spokesperson emphasized that people in medical isolation are “given access to recreational resources, commissary, and communications as logistically feasible while ensuring mitigation of exposure to others.”

Greater transparency around early release

The White House’s recent order also directs the Department of Justice to come up with a tally of all the people who are eligible to be released early from prison because they both don’t pose a threat to the community and are at outsized risk of dying from the virus.

Advocates and lawmakers have lamented that the Bureau of Prisons has been reluctant to use these powers, despite two recent laws passed by Congress that gave the federal prison system greater authority to send people home.

Alison Guernsey, a law professor at the University of Iowa who represents incarcerated people fighting to be released and who chronicles the Bureau of Prisons’ use of these powers, told STAT that the order is “a wonderful step, but … a first step” and that the order “doesn’t go as far as we need.” Guernsey argued that because the existing laws are being applied in disparate ways, different facilities will weigh different factors when deciding whether to send someone home.

One big missing piece: reforming ICE Covid protocols

Biden’s original promise also included a pledge to fix Covid-19 protocols in Immigration and Customs Enforcement, but the new order includes no mention of that effort. Even though advocates say immigration enforcement struggles with the same issues — and sometimes that agency is even more opaque.

On data transparency, for example, ICE reports nothing about how many people in immigration detention are vaccinated. Its data dashboard just includes the number of people who have tested positive, died, and are currently sick in each of their facilities.

There’s been widespread complaints about testing issues as well. One federal judge ruled in California that “ICE deliberately avoided testing detainees for fear that the results would require them to take expensive and logistically challenging safety measures.” Another accused ICE of deliberately misleading the court about its testing protocols.