With 10 deaths and more than 500 positive COVID-19 cases in the nation’s federal prisons, wardens must “move with dispatch” to “move vulnerable inmates out of these institutions.” These are the words that Attorney General William Barr used on April 3rd when he directed the Federal Bureau of Prisons (BOP) to reduce the federal prison population in the wake of COVID-19.

This instruction – though still lacking in concrete guidelines and timelines for release – is nearly a 180-degree turn for the Department of Justice (DOJ), which was taking a less urgent approach a just few weeks ago, even suggesting that “many inmates will be safer in BOP facilities.” Now realizing this is not the case, BOP wardens have been given the directive to protect lives against COVID-19. Having failed to prevent the suffering on their own to date, they must reverse course as well.

Since BOP reported its first case of COVID-19 on March 21, the virus has spread through its facilities “like wildfire.” In a matter of days, the COVID-19 infection rate increased nine-fold according to BOP’s own accounting, which is likely an undercount. Over the course of two weeks, those who tested positive for COVID-19 increased 8,600 percent according to the Federal Defenders. Today, more than 350 incarcerated persons and almost 200 staff have COVID-19. And with 70 percent of the BOP population Black and Latinx, people of color will bear the brunt of prison outbreaks.   

Public health experts warned that jails and prisons could become “incubators” for COVID-19. It is impossible to heed the primary recommendations of the Centers for Disease Control and Prevention (CDC) when incarcerated or working in a prison. You cannot practice social distancing behind bars. Hand sanitizer is contraband at most facilities. Soap costs money and can otherwise be hard to come by. And 45 percent of the federal prison population has chronic conditions. Experts say that prison systems are like “outpatient clinics,” and “should not weather the coronavirus on their own.” The clear solution is to reduce the size of the incarcerated population.

With the issuance of the April 3rd memo, DOJ and BOP suggested that they were taking those steps, as advocates, federal defenders, elected officials, and public health experts had called for. The recently enacted Coronavirus Aid, Relief, and Economic Security (CARES) Act gives DOJ and BOP somewhat broader authority to reduce the federal prison population in the wake of COVID-19. It is this authority that Attorney General Barr invoked on April 3 when he said “time is of the essence” to move “all at-risk inmates” to home confinement.

However, BOP wardens are not moving fast enough to safely reduce the federal prison population. Their proposed “plan” to review prisoners for release at the federal facility at Oakdale, Louisiana — where six men have already died and we had to sue to get the plan in the first place — is woefully insufficient and lacks any enforceable timelines. This shows that certain wardens — and perhaps BOP as a whole still — do not grasp the severity of the moment.

Before utilizing the CARES Act provisions, BOP moved 566 people from prison to home confinement in response to the pandemic. Now, over 900 people are on home confinement. But thousands should be going home with DOJ’s charge to immediately transfer “the most vulnerable inmates” at “the most affected facilities.” DOJ must now be clear that all facilities require population reduction to mitigate or prevent a COVID-19 outbreak, and that all incarcerated persons susceptible to COVID-19 — those who are older and elderly, as well as those who have underlying conditions — be sent home or to another facility where they can socially distance. BOP should not limit release based on facility or racially-biased risk assessments.   

A third of BOP facilities are currently reporting COVID-19 cases. One third. Prisons in Oakdale, Louisiana; Danbury, Connecticut; Butner, North Carolina; Lompoc, California; and Yazoo City, Mississippi each report several dozen cases. These numbers are unacceptable, and preventable.  

ACLU advocacy has already led to thousands of people being released from local jails and state prisons. The ACLU will continue pushing (and suing) from every angle to stem the outbreak in our nation’s jails and prisons. The wardens overseeing the 122 federal prisons have no time to spare. It is critical that they use every tool at their disposal to get people home.

Kanya Bennett, Senior Legislative Counsel. ACLU Washington Legislative Office

On Monday, I ended a 12-hour day returning emails to incarcerated queer folks, providing direct aid for housing to folks living with HIV & AIDS who have been incarcerated and challenging the state of Nebraska to provide humane conditions for incarcerated individuals and decided to mindlessly scroll on Twitter.
 
I found the quote from the show Ellen DeGeneres filmed from her multimillion-dollar, multi-room mansion: “One thing that I’ve learned from being in quarantine is that people — this is like being in jail, is what it is,” she said. “It’s mostly because I’ve been wearing the same clothes for 10 days and everyone in here is gay.”
 
What Ellen is experiencing, as well as what many people around the country are experiencing, is nothing like jail. You have choice. You can actually social distance. I assume you were not only allowed to shower that day, you could shower for more than 10 minutes and likely as many times as you like.
 
This is not at all what incarcerated people who have been locked down as a protective measure in institutions all across America are experiencing. The protective measures inside jails and prisons that many incarcerated individuals are now experiencing bear a striking resemblance to solitary confinement.
 
When you are in solitary, your partner is not there with you. You are not calling or FaceTiming your mother as many times as you like.
 
At Black & Pink, which seeks to liberate LGBTQIA2S+ people and people living with HIV who are affected by the criminal justice system, we are currently fighting for access to mail and phone calls for people all across the county. The cost of contacting a loved one is extremely expensive. A video call using the JPay system currently costs $1.25 for a 30 second video.
 
Incarcerated people are filing lawsuits for access to toilet paper and soap. Those of us who have been incarcerated have always viewed these items as high-demand. For us, this is not new.
 
Here’s my message to Ellen:

https://twitter.com/dm56892/statuses/1247693758801555456

https://twitter.com/MikeSington/statuses/1247228264017346561

I assume if you wanted you could be tested for COVID-19 immediately. On the inside, we are fighting privatized health systems where a Tylenol is $5.00 and testing incarcerated people for COVID-19 is a dream that will not only be deferred, but most likely denied.
 
Being queer in prison isn’t sitting on your outdoor furniture in your finest silk. For myself and the people we serve at Black and Pink it’s about keeping ourselves safe. The peace I witnessed on your face is an experience that queer people inside rarely have access to — especially in the midst of a pandemic.
 
The queer and transgender youth that come on your show and dance and sing? Youth just like them are inside of youth detention centers all over this country, wondering when they will be able to go home.
 
On any average day, prisons and jails in this country are the epicenter of the deterioration of humanity. In a time of crisis or pandemic it’s ten times worse.
 
I have a firm belief that empathy should be the tool we reach for first – especially at times like these. If you want to know what it’s like to be inside of jail and prisons, Ellen — give me a call. Not on Zoom though. I’m Zoomed out.
 
Dominique Morgan (They/Them) is executive director of Black and Pink, Inc.