WASHINGTON — Today, U.S. Senator Chris Coons (D-Del.) questioned officials about the ongoing effort by the Federal Bureau of Prisons (B.O.P.) and Immigrations and Customs Enforcement (I.C.E.) to limit the populations detained or incarcerated in facilities amid the COVID-19 crisis and outbreaks within the federal prison system. In today’s Senate Judiciary Committee hearing on “Examining Best Practices for Incarceration and Detention During COVID-19,” senators questioned Michael Carvajal, Director of B.O.P; Dr. Jeffrey Allen, Medical Director at B.O.P.; and Henry Lucero, Executive Associate Director of Enforcement and Removal Operations at I.C.E.

B.O.P. has reported roughly 5,000 inmates and 600 staff testing positive and 70 inmate deaths (with no staff deaths), out of roughly 165,000 inmates and 36,000 staff. The high rates of infection and the significant public health risks for detention facilities has prompted public concern and Congressional oversight.  Senator Coons recognized that the death of George Floyd is reflective of persistent structural racism and that racism is an important aspect of the issues discussed at this hearing as well.

Senator Coons pressed Director Carvajal on why B.O.P. isn’t giving transparency on the number of inmates tested by facility, recognizing that such information—beyond case counts—is critical to knowing whether there has been adequate testing and whether a facility may be subject to an outbreak. Will you disclose this information for B.O.P.: how many tests have been conducted at each facility?” asked Senator Coons. Carvajal did not provide a direct response and then handed it off to the Medical Director, Dr. Allen, who said, “From my perspective, there is no reason for us not to do that.

Senator Coons then underscored that ICE should do the same, by facility, so local communities can know what to make of the case numbers that are coming out. To Mr. Lucero, Senator Coons added, “I urge you to continue full compliance. I will join with my colleague from Illinois in saying that deporting individuals to central America in particular without testing them risks the same sort of public health challenges that Dr. Allen said that B.O.P. is responsibly responding to. So given the resources now available, I urge you to test anyone before they are deported to another nation.”

Earlier, in an opening statement, Senator Coons highlighted the disproportionate impact of harmful policing practices and incarceration on communities of color amid ongoing protests across the United States.

Full audio and video is available here. A transcript is provided below.

Sen. Coons: Thank you, Mr. Chairman. Thank you for calling this hearing and for agreeing to hold a hearing on excessive force by police and police community relations. Like so many Americans, I'm filled with grief and concern over both the killing of George Floyd and the persistent structural racism that his death reflects and that racism is an important aspect of the challenges and issues that we're discussing in this hearing today. No American should receive a death threat for passing a fake $20 bill or selling a cigarette on the street, and that's frankly what unsafe conditions in our prisons and immigration detention facilities threaten to do right now which is to impose a death sentence because of the pandemic in circumstances when that's not reasonable. I appreciate that prison and immigration officials face very complex challenges at this time and I appreciate your testimony, but I think we have to improve our response. Director Carvajal, knowing there are few COVID-19 cases at a prison, while helpful, doesn't really provide full information without knowing the number of inmates tested. Why doesn't the Bureau of Prisons disclose – as I.C.E. does ­– how many tests have been conducted and at each facility? 

Director Carvajal: Thank you, Senator. As you're well aware, early on testing was hard to get. We now have 130 Avid I.D. Rapid test machines and we have increased our testing kits. We currently have about 40,000 kits. We are getting about 10,000 kits per week. So we are strategizing now and the things we've learned since the start of COVID, we've been able to implement that ­–

Sen. Coons:  Director, will you disclose this information for B.O.P.: How many tests have been conducted at each facility? I think you’ve been transparent on a wide range of factors, but I think that would help significantly. How many tests at each facility? 
Director Carvajal:  Sir, I don't have the information in front of me, Senator. I will tell you I appreciate the acknowledgment of transparency. We have a very good public website that we update daily. I will defer to Dr. Allen as if whether or not he knows our testing strategy or why we are not posting the testing results. 
Sen. Coons:  If you could briefly, doctor, why not regularly disclose this information? How many tests are being done at each facility?
Dr. Allen: From my perspective, there is no reason for us not to do that. As you point out, we're hoping and trying to be very transparent. We have tested approximately 15,000 inmates to date. Mostly at facilities that have known COVID infections. Our infection rate in those situations is approximately 30%; so that 5,000 figure that’s been mentioned today. But that is in areas where we went looking for it and expected to find it. If we apply that data across the board, it shows that we have an infection rate of about 4%. 
Sen. Coons:  Well as you can understand for all of you, there are concerned family members and community waiting for and anxious about those who are detained or who are inmates. So Mr. Lucero, I.C.E. does public aggregate testing totals every day but not by facility. I would like to urge – now that you've got testing that is up and running and scale ­­– that you be as transparent as possible across those issues. Director Carvajal, the A.G.’s April 3 memo directed you to review all inmates who have COVID-19 risk factors for home confinement, but some inmates report being told they are not eligible based on unrelated factors like whether they've served half of their sentence. Would you remove those barriers so all COVID-19 vulnerable inmates get a proper review? 
Director Carvajal:  Senator, we were, as you stated, reviewing and prioritizing inmates who had served at least 50% of their sentence or 25% of their sentence and had 18 months or less remaining. There was quite a number, and as I stated earlier, the same staff that are making these assessments are also the ones working these facilities during this pandemic. And it's a huge undertaking, so we have to have a way to triage it so to speak, and we did that. We are reviewing all eligible cases. I assure you that we review them if they are eligible and they meet the criteria, then we do what we can to transfer them to home confinement. 
Sen. Coons:  But exactly my question was about those criteria by which you decide who’s eligible for review, which is not just are they vulnerable to COVID-19, but some other screening criteria unrelated to their vulnerability. Frankly, it was the release of Paul Manafort that I think heightened the public focus on someone being released who hadn't gotten to half of their sentence whereas there were other cases where inmates were told they wouldn't be reviewed for home custody because they hadn't hit half. I'm out of my time. I’m going to ask one last question if I might, Mr. Lucero. There are 4500 asylum-seekers in your custody who USCIS has established have a credible fear of persecution or torture. It is heartbreaking that people who escape persecution, made it to the United States, are now enduring a pandemic in detention. Under longstanding I.C.E. policy, reaffirmed by this administration, they should generally be paroled absent specific risk factors. Is I.C.E. complying with this policy? And could you just say yes or no?
Mr. Lucero: Yes. 
Sen. Coons:  I urge you to continue full compliance. I will join with my colleague from Illinois in saying that deporting individuals to central America in particular without testing them risks the same sort of public health challenges that Dr. Allen said that B.O.P. is responsibly responding to. So given the resources now available, I urge you to test anyone before they are deported to another nation. Thank you for this hearing, Mr. Chairman. 

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