Statement of LaShawn Warren for Senate Judiciary Committee “Examining Best Practices for Incarceration and Detention During COVID-19”

STATEMENT OF LASHAWN WARREN, EXECUTIVE VICE PRESIDENT THE LEADERSHIP CONFERENCE ON CIVIL AND HUMAN RIGHTS

“EXAMINING BEST PRACTICES FOR INCARCERATION AND DETENTION DURING COVID-19”

SENATE JUDICIARY COMMITTEE

June 2, 2020

On behalf of The Leadership Conference on Civil and Human Rights, a coalition charged by its diverse membership of more than 220 national organizations to promote and protect the civil and human rights of all persons in the United States, we thank you for the opportunity to submit our views regarding incarceration and detention during the COVID-19 crisis, and ask that this statement to be entered into the record of the Judiciary Committee hearing entitled, “Examining Best Practices for Incarceration and Detention During COVID-19.”

In America’s jails, prisons, immigration detention centers and juvenile detention facilities, many individuals suffer from physical mistreatment, excessive disciplinary sanctions, abhorrent physical conditions, and inadequate medical and mental health care. Moreover, overcrowding, violence, sexual abuse, and other conditions regularly pose grave risks to the health and safety of those who are incarcerated or jailed. The COVID-19 pandemic raging across our nation has posed new risks that have exacerbated existing abominable jail and prison conditions exponentially. Social distancing is simply not possible in such close quarters, and a lack of access to testing and medical treatment means that our prisoners and detainees are facing dire health consequences, no matter how small their legal infraction. We urge Congress to demand that the Department of Justice (DOJ) and the Department of Homeland Security (DHS) release prisoners and detainees at heightened risk from COVID-19 who can safely serve out their sentences or await removal proceedings out of custody.

DOJ Must Decarcerate as Many People as Possible During the Pandemic

Throughout this pandemic, our coalition has repeatedly urged administration officials to protect the health and safety of incarcerated individuals by reducing the number of individuals – and in particular, high-risk individuals – from federal custody. As of June 7, 5,935 federal inmates and 636 BOP staff have tested positive for coronavirus.[1] While many have recovered, at least 78 inmates and one staff member have died as a result.[2] On March 24, we joined other advocacy groups in asking President Trump to consider exercising his clemency powers to commute the sentences of individuals who could benefit from compassionate release, as well as other elderly or vulnerable prisoners.[3] Ten days later, we wrote Attorney General Barr to request that he decarcerate as many people as possible from  DOJ Bureau of Prisons (BOP) custody.[4] We made clear that BOP must stop relying on the flawed “Prisoner Assessment Tool Targeting Estimated Risk and Needs” (PATTERN) program to identify eligible people for home confinement – both during this pandemic and after – because of its tendency to produce inaccurate results and disparate racial outcomes. The tool’s inherent flaws and lack of sufficient testing on Black and Brown people would result in people of color being disproportionately excluded from release, and we therefore asked that PATTERN be suspended from use until these systemic glitches, that could unintentionally convey incorrect data, are addressed.

The COVID-19 crisis has created serious risks for this enormous prison population, especially given the enclosed nature of jails and prisons as well as the difficulties of maintaining proper hygiene inside facilities. Many jails are extremely overcrowded; access to clean water and showers is limited; and hand sanitizer is often banned. Moreover, the jail population is more likely to be older and have chronic health conditions that render them particularly vulnerable to both infection and serious medical complications. All of these conditions effectively create a virus tinderbox that threatens not only incarcerated people, but also their families, people who work in prisons and detention centers, and communities at large.

Unfortunately, not enough has been done to decrease prison and jail populations. Notably, nearly half of the federal prison population has been incarcerated for a drug offense. And thousands of people are serving life sentences for drug offenses. They are mothers, fathers, daughters, sons, sisters, brothers, aunts, uncles, and cousins. They are real people with families — and they deserve dignity and access to care and safety during this frightening time.

This administration must use the discretion it has under current law, including the CARES Act, to immediately release as many people as possible. Other officials across the country who have the authority must do the same. In addition, as Congress works on its next legislative response to COVID-19, we recommend that BOP release as many people as possible, especially the most vulnerable, from prisons and pre-trial detention and increase testing and provide adequate health care and communications for all people who remain in custody. We also recommend that states be incentivized to drastically reduce their jail and prison populations and law enforcement to reduce arrests and end jail bookings.

Ensuring Existing Federal Funding Reduces New People Coming into Custody at All Levels:  Prioritizing Bias-Free Policies and Practices; Stopping Arrests and Detention to the Maximum Extent Possible; Investing in Social Services

Federal funding to law enforcement agencies must prioritize public education and awareness of the disproportionate impact of COVID-19 on communities of color, limit arrests and citations for failure to comply with public health ordinances, and require the implementation of bias and anti-profiling policies and trainings. The BOP must invest in mental health, community outreach, and social services inside and outside of its agency to end the use of police in addressing public health crises; and must also remove barriers to people with records accessing social safety net programs and services upon release.

BOP Must Ensure that People Who Remain in its Custody are Not Serving a Death Sentence Due to COVID-19

But even if the administration begins releasing individuals, more will be necessary to continue to protect those who remain behind bars. Since the war on drugs began in the 1980s, the United States has seen a 500 percent increase of people in our nation’s prisons and jails. In 1980, just over 40,000 people were incarcerated for drug offenses. Today, that number has catapulted to nearly half a million. And we know this trend has not impacted all communities equally: According to the Sentencing Project, Black and Latino people comprise 29 percent of the U.S. population, yet account for 57 percent of the U.S. prison population.[5] Imprisonment rates in communities of color are much higher than rates in white communities — and these disparities exist almost across the board from the least to the most serious offenses.

The coronavirus pandemic has starkly illustrated, however, that racial disparities exist in our health systems as well as in our criminal justice systems. Studies have shown that African-American individuals are more than 3.5 times, and Latino individuals almost twice as likely, as White individuals to die of the coronavirus[6] – a statistic that is troubling given that an estimated 40 percent of the BOP population is Black and 30 percent is non-White, Hispanic- making up 70 percent of the BOP population.[7] We therefore remain concerned that people of color continue to bear the brunt of COVID-19 outbreaks in federal BOP facilities just as they have borne the brunt of COVID-19 deaths nationwide. That is why, on April 21, we asked BOP to expand its reporting of coronavirus cases by publishing demographic information for all COVID-19 cases in all federal facilities under its jurisdiction.[8] While we welcome the fact that a number of elected officials have called for health agencies to collect and report demographic data on COVID-19, we also need Congress to ensure that BOP is doing this in a systematic and effective manner.

Release Immigrants in ICE Custody and Stop Putting People into Facilities: People in Detention Are Extremely Vulnerable to Spread of COVID-19

Not only is DOJ obliged to step in and protect the health and safety of the men and women in custody at BOP, but the Department of Homeland Security, Immigration and Customs Enforcement (ICE) also must ensure that immigration detention does not become a death sentence during this pandemic. Tens of thousands of immigrants detained and taken into civilian custody by ICE are also at significant risk as the result of overcrowding, inadequate testing, insufficient medical care, and the lack of social distancing in detention. Urgent changes must be made to the way that immigration detention and enforcement occur during this unprecedented national public health emergency, and we as a nation must take action before more people die.

Even before the onset of the COVID-19 pandemic, ICE had a well-documented history of mismanaging outbreaks of infectious diseases within its detention facilities. This should come as no surprise given numerous reports of the agency’s failure to provide adequate soap, hygiene products, and at times even hot water to detainees, as well as its history of medical abuse and neglect in immigration detention centers. While these issues were troubling before, they now raise even more significant concerns over the steps the agency is taking in the face of our current public health crisis.

According to the most recent statistics, as of June 4, there have been a total of 1,623 coronavirus cases and two deaths among ICE detainees.[9] It should be noted that only about 12 percent of individuals in ICE custody have been tested for the virus.[10] Despite this, since the beginning of the COVID-19 pandemic, ICE has continued its pattern of failing to provide for the basic needs of the people in its custody, and in some cases, has exacerbated the threat of COVID-19 through mismanagement, retaliation, and abuse. For example, on March 23, guards at the South Texas ICE Processing Center in Pearsall, Texas pepper-sprayed approximately 60 people detained in the facility when they refused to return to their beds and called for ICE to release them due to concerns over contracting COVID-19. ICE then moved nine people who participated in the protest to restricted housing and said they would be punished with “disciplinary charges due to security violations.”[11]

We urge ICE to release all individuals who are at higher risk of vulnerability to COVID-19 because of age or pre-existing health conditions. Medical experts have been clear about the risks that crowded detention facilities and jails pose, and we know that ICE does not, and indeed cannot, enforce proper social distancing in detention facilities.

In addition, detainees, including those in mandatory detention, must be afforded a presumption of release because they are in civil detention. DHS should review the files of all persons in custody and authorize their release unless the agency can meet a high evidentiary standard justifying continued detention. There is no justification for the continued detention of any person for civil enforcement measures given the severity of the COVID-19 pandemic and the grave risk it poses to those behind bars.

DHS must also provide basic health and sanitary supplies – especially essential items including soap and hand sanitizer – and free telephonic access to loved ones and counsel to all persons that remain in custody. This will ensure that as DHS takes steps to release the people in custody, it will immediately heed the public health advice on how to avoid virus transmission within detention facilities and treat individuals with basic human decency.

Finally, we request that ICE suspend interior civil immigration enforcement during the course of the COVID-19 pandemic except in certain limited circumstances. Moreover, we call on ICE to end  enforcement in sensitive locations such as medical facilities and other places that offer vital assistance so that no one is deterred from seeking lifesaving care. This critical measure would stem the inflow of individuals coming into custody at a time when the continued enforcement of civil immigration laws poses real and dangerous risks to our collective health.

COVID-19 Reveals Devastating Impact of Long-standing Immigration Policies that Put Children and Families at Risk in the Midst of a Pandemic

But this is not all. Already, in recent years, DHS’s child separation policy has forced numerous parents to make the gut-wrenching decision between staying in detention indefinitely or returning home, knowing they may never see their children again. Now, in a thinly veiled effort to use the coronavirus as a cover for changing immigration law, the Trump administration has also introduced a new policy effectively ending asylum claims at our southern border. The closure, announced on March 21 and renewed on both April 20 and May 19, flies in the face of our obligations under domestic and international law.[12] Under the Immigration and Nationality Act, individuals are allowed the opportunity to petition for asylum to escape persecution or violence in their home countries.[13] This is the humane response to individuals arriving at our borders, as well as the response required by law.

These and other inhumane actions taken against immigrants by ICE and other DHS bureaus continue to put the lives of immigrants and asylees at heightened risk, and we therefore call on ICE to put additional restrictions on detention and enforcement activity and to ensure that these restrictions are implemented by all Field Offices.

Conclusion

When the practices of DOJ and DHS jeopardize the lives of men, women, and children in their custody, and when people die as a result of DOJ’s and DHS’ action or inaction, we should remember that these federal agencies are acting in our name.  We have long known the real danger that comes with incarceration and detention, and the horrific conditions under which people in the custody of the United States must survive.  The recent public health crisis puts those pre-existing conditions, and the disparate impact on African Americans and the Latino community, in sharper focus.  We all must work together to release as many people as possible from federal custody to ensure that their actions do not result in a death sentence.

[1] Federal Bureau of Prisons, COVID-19 Coronavirus. (updated on June 7, 2020). https://www.bop.gov/coronavirus/#:~:text=COVID%2D19%20Cases&text=There%20are%201938%20federal%20inmates,attributed%20to%20COVID%2D19%20disease.

[2] Ibid.

[3] Letter from American Civil Liberties Union et al., to President Donald J. Trump (Mar. 24 2020). https://justiceroundtable.org/wp-content/uploads/2020/03/WH-Letter-Re-Coronavirus-Clemency-FINAL-1.pdf

[4] Letter from The Leadership Conference on Civil and Human Rights et al., to Attorney General William P. Barr (Apr. 3, 2020). http://civilrightsdocs.info/pdf/policy/letters/2020/Final_Letter_on_PATTERN_in_Response_to_AG_Barr_Memo_on_4_26-4_3_2020.pdf

[5] The Sentencing Project. (Apr. 19, 2018). Report to the United Nations on Racial Dispartieis in the Criminal Justice System. https://www.sentencingproject.org/publications/un-report-on-racial-disparities/

[6] Hathaway, B. (May 19, 2020). New analysis quantifies risk of COVID-19 to racial, ethnic minorities. YaleNews. https://news.yale.edu/2020/05/19/new-analysis-quantifies-risk-covid-19-racial-ethnic-minorities

[7] [7] Federal Bureau of Prisons. (updated on June 7, 2020). https://www.bop.gov/about/statistics/statistics_inmate_race.jsp; https://www.bop.gov/about/statistics/statistics_inmate_ethnicity.jsp

[8] Letter from The Leadership Conference on Civil and Human Rights et al., to Michael Carvajal, Director, Federal Bureau of Prisons (Apr. 21, 2020). http://civilrightsdocs.info/pdf/policy/letters/2020/Coalition%20Letter%20to%20BOP%20Demographic%20Data%20FINAL.pdf

[9] Immigration and Customs Enforcement, ICE Guidance on COVID-19: ICE Detainee Statistics. (updated on June 4, 2020). https://www.ice.gov/coronavirus

[10] Ibid.

[11] Aguilar, J. and Trevizo, P. (Mar. 26, 2020). As Coronavirus Infections Spread, So Have Clashes Between ICE Detainees and Guards. The Texas Tribune and ProPublica. https://www.propublica.org/article/as-coronavirus-infections-spread-so-have-clashes-between-ice-detainees-and-guards

[12] Department of Homeland Security. Fact Sheet: DHS Measures on the Border to Limit the Further Spread of Coronavirus. (May 20, 2020). https://www.dhs.gov/news/2020/05/20/fact-sheet-dhs-measures-border-limit-further-spread-coronavirus

[13] 18 U.S.C. § 1158.