Jun 2, 2020
Senate Judiciary Hearing Transcript on Incarceration During COVID-19
The United States Senate held a hearing June 2 on incarceration and detention amid the coronavirus pandemic. Read the full hearing transcript here.
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Lindsey Graham: (00:00)
… with their families, 850 million for grants in general, dealing with the effects of law enforcement and dealing with the pandemic. The Bureau of Prisons has released 3,183 inmates on home confinement since March due to the virus. ICE facilities are operating at 51% capacity, well below the CDC recommended guideline of 75%. There are 26,660 detainees in ICE custody, a substantial reduction. So that’s sort of the lay of the land. And I look forward to hearing from our panel about how it’s going and what we can do to make it better. With that, I’ll turn it over to Senator Feinstein.
Diane Feinstein: (00:45)
Thanks very much Mr chairman. I’d like to say just a few words about recent events, but I drew a lot of my experience from a situation a long time ago in San Francisco. I was president of the board of supervisors, and one day a colleague shot and killed the mayor of the city, and shot and killed the first openly gay public official, a member of the board of supervisors. I walked into the office. I found his body. I put my finger into a bullet hole trying to get the pulse. And I saw a city come apart at the edges, and I became acting mayor as president of the board of supervisors and had to handle it. And one of the great learning experiences of the time was that you really have to be very careful in what you do.
Diane Feinstein: (01:49)
Everybody has an acute sensitivity, Mr chairman, and there’s desperate need to bring people together, to show the sameness among us, not to illustrate the badness. In this case, you had a police officer responsible for the death of a victim, and people reacted. But now what has to happen, the message is clearly sent. And what has to happen is, I think we should take a look. We are going to hold hearings. If there’s something that’s appropriate for us to do, I think under your leadership, we’ll be very capable and able to do it. But this is one of those horrible anomalies about life. And when it happens, it’s so graphic and so real, and you can’t control it. It’s a very, very hard time. So what I’d like to say is, I know how hard it is for people out there. I think the message has been transmitted. I think they want all of us to work, to bring people together, to stop the division and to reform police practices wherever necessary, to prevent this kind of thing from ever happening again. Thank you very much.
Lindsey Graham: (03:13)
Thank you. Senator Durbin?
Dick Durbin: (03:15)
Thanks a lot, Mr Chairman. Mr Chairman, we’re in a constitutional moment. The questions being asked of us in this committee, because historically it’s been the Senate Judiciary Committee that has been the focal point for the most important political and constitutional debates facing our nation. Just look at the history of this committee. Many of us, before we arrived here, stood in awe of what happened within this committee room. Time and again, in the course of American history, the men and women of this committee were called on over and over again, not just with Supreme Court appointments, but whenever there was an issue of great moment, whether it was Watergate or Iran Contra, we were there. That’s why I wanted to be on this committee. I felt that if you’re going to serve in the Senate, there’s no better place to be at that moment in history, when the Senate has looked to for leadership for this nation.
Dick Durbin: (04:15)
We have questions before us today that are of constitutional moment. Is our system of justice in America so infected by racism, that it cannot function in a manner consistent with our democratic values? That’s as basic as it gets in a democratic society, that question. Is our President mobilizing our military to suppress dissent in a manner inconsistent with the constitution and never seen before in history? That is a question that goes to the very heart of our democracy, and our role as an equal branch of government.
Dick Durbin: (04:56)
We come together today to discuss an important issue involving a pandemic and our role as a government when it comes to incarceration and detention, that is a timely topic, but I would urge you Mr chairman, as I’m sure Senator Feinstein has as well, not to overlook the fact that these issues that I just raised, and there are more, really go to the heart of our democracy. So many other things this committee might consider in the days ahead are on the political periphery. They may have had some salients in the political debate of weeks ago or months ago. Today, they are irrelevant. What is relevant is the issue of racism in the enforcement of justice. What is relevant is the question as to how America can be safe and still hold to its democratic values and principles.
Dick Durbin: (05:56)
I thank you for this hearing. I’m pleased that we will have another hearing on the issue of police misconduct. I hope it is the first of many. As we’ve seen in recent days, America still lives in the shadow of its original sin, slavery and the racism that’s bonded. I chaired the Senate judiciary committee on constitution and civil rights. We held a hearing on race in America. In December of 2014, I said at the time, “When unarmed African American men and boys are being killed on the streets, we have much work to do.” That was six years ago. And unfortunately, it’s difficult to find any evidence of progress since that hearing.
Dick Durbin: (06:43)
We cannot discuss the issue of incarceration in America, without considering the impact of racism. We hold more prisoners by far than any other country in the world. This is largely due to the failed war on drugs, which disproportionately and unjustly targeted people of color. While the majority of illegal drug users and dealers in our country are white, the vast majority of people incarcerated for drug offenses are African American or Latino. With that in mind, I’m disappointed, but I’m not surprised at the Bureau of Prisons failure to do more to protect individuals in its custody from the threat of COVID-19. This is not a partisan issue. In December, 2018, the Senate came together across the aisle to pass the First Step Act on an overwhelming 87 to 12 vote. The First Step Act gave the Bureau of Prisons the authority to quickly release or transfer vulnerable inmates to home confinement. On March the 23rd of this year, Senator Grassley and I joined 12 of our colleagues and sent a letter to Attorney General Barr and Bureau of Prisons Director Cravajal, urging them to use First Step authorities. We saw the cruise ship loading before it left port.
Dick Durbin: (08:11)
At the time of our letter, and that was 10 weeks ago, only three inmates and three staff members had tested positive for COVID-19. Two months later, more than 5,200 inmates and more than 600 staff have tested positive. We know that the infection is rampant, we see the reports every single day, but listen to this number. The rate of infection is 6.6 times higher than the general population in the United States when it comes to our Bureau of Prisons. More than six times higher. At the same time, only 2%, 2% Mr Chairman, of the prison population has been transferred to home confinement. Tragically, at least 68 inmates in Bureau of Prisons custody have died, nearly all of whom had known preexisting conditions that made them vulnerable. Several were within a few months of being released.
Dick Durbin: (09:14)
One of those preventable deaths was Andrea High Bear. Miss High Bear was eight months pregnant when BoP officials sent her to the Federal medical center in Carswell. She contracted COVID-19 and gave birth to her premature daughter while on a ventilator. Nearly a month later, Miss High Bear died. She was never able to hold her baby in her arms.
Dick Durbin: (09:42)
I was stunned to learn that many inmates are being denied home confinement, unless they are deemed, “minimum risk” by the justice department’s risk assessment tool. It’s a formula, it’s a mathematical formula, and it’s known as pattern. Every one of our witnesses knows what I’m talking about. At our last Bureau of Prisons oversight hearing, the Department of Justice’s own analysis forecast, shocking racial disparities in this mathematical formula known as pattern. With a majority, a majority of black men deemed high risk. Do not believe that racism and law enforcement died with George Floyd on a curb in Minneapolis. Under this flawed and cruel justice department standard, listen to this, only 7% of black men were classified as minimum risk, compared to 30% of white men in our Bureau of Prisons.
Dick Durbin: (10:37)
Is it any wonder that white inmates, like the President’s campaign manager, Paul Manafort and the President’s personal attorney, Michael Cohen, are being transferred to home confinement, while vulnerable inmates of color like Andrea High Bear languish and die? Today, we must also consider America’s other great civil rights challenge, and that is immigration. In the midst of this pandemic, we are reminded every day that America would be lost without immigrants. You know those controversial DACA people? Among their 800,000 are 41,000 healthcare professionals risking their lives fighting COVID-19. 41,000 DACA recipients. But at the same time, thousands of immigrants are still languishing in a inhumane detention system. Many have committed no crime other than trying to provide a better future for their families. ICE could easily transfer them to alternatives, to detention, which would be even safer.
Dick Durbin: (11:39)
In mid March, Dr Allen, a witness before this committee today, warned that ICE’s detention facilities pose and I quote, “An eminent risk to the health and safety of immigration detainees, as well as to the public at large.” His warning went ignored, and the virus has now spread rapidly through ICE detention facilities. It is clear more oversight is necessary. I join today in announcing legislation, cosponsored by Senators Klobuchar and Harris, to establish an independent ombudsman, to oversee federal detention facilities. I hope my colleagues will join me on a bipartisan basis in sponsoring it. Theodore Dostoevsky once said, “The degree of civilization in a society can be judged by entering its prisons.” We cannot ignore the impact of this pandemic on incarcerated individuals. We have to take advantage of smart, safe alternatives to incarceration that are available. By doing so, we can protect communities where these facilities are located, protect the staff who want to go home to their families without bringing a deadly infection with them, and we will save lives.
Dick Durbin: (12:48)
When we turn the key in the lock on the door of a prison or a detention facility, we put our collective knees on the necks of the most vulnerable people in America. The question is, will we be listening to their pleas for life? Thank you, Mr Chairman.
Lindsey Graham: (13:08)
Very quickly, Senator Coons.
Chris Coons: (13:10)
Thank you, Mr Chairman. Thank you ranking member Feinstein. And thank you to my colleague from Illinois for a sweeping and focused opening. I will briefly, if I could, add my voice to it. We are in the middle, as a nation, of three different crises. A public health pandemic in the COVID-19 pandemic, that has differentially impacted communities of color. An economic crisis, a deep recession that has impacted communities of color. And now, nationwide protests because of the brutal killing of George Floyd, nationally televised, that is getting this response because policing practices and incarceration have impacted communities of color. So Mr Chairman, I’m grateful we are having a timely hearing today on detention and incarceration practices during this pandemic. There are too many names that we know, it’s not just George Floyd’s name, it’s Eric Gardner’s and Freddie Gray’s, and it’s dozens of others over many years that have raised the concern of all of us, about what we are doing as a nation.
Chris Coons: (14:21)
This requires not just a hearing, not just listening, but actually engaging the voices of those all over our country, who are protesting because they are fed up at the lack of progress. So thank you, Mr chairman, for agreeing to the hearing on June 16th. Thank you for this hearing today. But I very much look forward to continuing to hear from and to convey the voices of the people of my home state, who have been protesting all weekend, a lack of progress in criminal justice reform, a lack of humaneness in how we are conducting imprisonment and detention. And I look forward to this hearing today.
Lindsey Graham: (14:56)
Senator Blumenthal very quickly, please.
Richard Blumenthal: (14:58)
Mr Chairman, I want to thank you for agreeing to have this hearing, and also the hearing on police practices on June 15, hopefully it will take place then. I want to thank my colleague, Senator Durbin, for that powerful statement and join him in his views. And perhaps if he’s accepting co-sponsors to his legislation, I would like to join him. This nation clearly is at a moment of reckoning. It is convulsed by a fever of discord, a fever fanned. by some of the statements at the very top of our government. Our role now is to bring us together, to move forward, to take this moment and use it constructively in the midst of an economic crisis, a healthcare crisis, and now a justice crisis. And that’s why leadership is so important at this moment. We need to break the virus of racism that has infected this nation for too long. It has manifested itself in countless ways, most dramatically in the video, the disgusting vile actions of a Minneapolis police officer, who properly has been charged with murder, but the three others who watched him and a department that may have been complicit as well.
Richard Blumenthal: (16:22)
The role of this committee has to be to provide that kind of leadership, or at least help, because so far it is coming from very few other sources. I was proud to stand with protestors in Bridgeport, Connecticut, most of them under 30, who peacefully were expressing their view that this nation needs to do better and break that virus of racism. And now we need to hear their pleas. And also, the pleas of law enforcement officials, constructive and positive law enforcement messages that those Minneapolis police officers who will be charged there, do not speak for them, do not represent them, do not in any way, reflect their ethos and professionalism. And bringing order to our streets now is necessary, but we must also move forward and effectuate change in this nation. The time has come. Thank you, Mr chairman.
Lindsey Graham: (17:33)
Thank you very much. Could you please rise and raise your right hand please? Do you solemnly swear the testimony you’re about to give this committee is the truth, the whole truth and nothing but truth, so help you God?
Lindsey Graham: (17:50)
Okay. Thank you. Thank you all. Your various distinguished backgrounds and rather than reading your resume, I’ll let you just start talking.
Diane Feinstein: (17:59)
May I put this in the record?
Lindsey Graham: (18:00)
Yes, ma’am. Without objection, Senator Feinstein’s statement … Is it Mr Carvajal? Is that right?
Mr Carvajal: (18:07)
Yes, Chairman Graham. Carvajal.
Lindsey Graham: (18:08)
Thank you very much. Floor’s yours.
Mr Carvajal: (18:11)
Good morning. Chairman Graham, ranking member Feinstein and members of the committee. The Bureau of Prisons response to COVID-19 began in January and continues to evolve with the latest medical and CDC guidance. We have received a great deal of scrutiny with respect to our plan. Much of that scrutiny has been based on misinformation or misunderstanding of our actions, so I appreciate the opportunity to discuss in person all that we’ve been doing to keep our inmates and staff safe. I appreciate having on the panel the Bureau’s medical director, Dr Jeffery Allen. Dr Allen has been on the front lines of this pandemic fight. He and his medical staff have been in almost daily communication with experts from the CDC, to ensure our response has been consistent and in accordance with CDC guidance. His medical expertise will be of great value during today’s discussion.
Mr Carvajal: (19:01)
I spent nearly 28 years in the Bureau, starting as a correctional officer, moving up through the ranks to leverage my experience as a captain, warden, regional director, and now director. I was appointed to serve as the Bureau’s 11th director, just about four weeks before our first inmate COVID case. In these past three months, I’ve seen the Bureau’s over 36,000 corrections professionals work with profound dedication in carrying out a mission to protect the health and safety of the inmates, the fellow staff, and the public. I am keenly aware of the personal sacrifices these law enforcement officers make in fulfilling our important public safety mission. Their inherently dangerous work goes largely unseen by the public, yet it helps keeps our community safe.
Mr Carvajal: (19:45)
The Bureau has a robust pandemic plan in place. And just as in your communities, our plan evolves as information about the nation’s COVID response measures are updated. The Bureau has positive cases in less than half of our prisons, with less than 20, having a significant presence of COVID. In fact, two thirds of our positive cases are located in just seven of our 122 institutions. We are now in phase seven of our plan, which is outlined in detail in my written statement. It is also available on our public website, along with other relevant covert data that is updated daily. As you know, testing resources were extremely limited at the beginning of this pandemic. Now, as testing resources have become more widely available, we are expanding testing to our inmate population, which is helping us to quickly identify and isolate positive cases to flatten the curve when an outbreak occurs.
Mr Carvajal: (20:37)
Also at the start of the pandemic, the Bureau assessed our personal protective equipment, PPE, inventories. We had appropriate amounts on hand nationwide, but we were concerned about future supplies knowing that we might rapidly burn through our inventories as the outbreak spread. We now have stockpiles of PPE at each institution and at our regional logistics sites. We have 30.6 million pieces of PPE, including N95 respirators, gloves, masks, and gowns on hand, with another 2.8 million items on order. We also have generous amounts of cleaning supplies and hand sanitizer, and have converted a number of federal prison industry factories to PPE production. We have 30 ventilators that we’re providing to local hospital partners for their use, and we have established field hospitals and contracted for medical providers so that they can quickly stand up infirmaries within our institutions when needed.
Mr Carvajal: (21:32)
But despite our measures, there has been loss. The loss of one inmate is one too many. And I can tell you firsthand, as I’ve been with inmates as they’ve taken their last breath, those deaths affect us all deeply. While our overall death rate mirrors the community’s death rate in relation to COVID, we are charged with the care of these individuals and the losses are difficult to accept. I am honored to speak on behalf of the Bureau staff nationwide, who are working long hours to mitigate the spread of this virus in our institutions. Our mission is extremely challenging, but it’s vital to the safety and security of the public, our staff, and the inmates we house. Chairman Graham, ranking member Feinstein, and members of the committee. This concludes my statement.
Jeffery Allen: (22:28)
Test. Thank you. Sorry about that. Good morning chairman Graham, ranking member Feinstein and members of the committee. And thank you, Director Carvajal for your leadership and support of our agency during these very challenging times. My prepared remarks will address two broad areas. First, some characteristics of the disease itself, and then some specific aspects of the Bureau’s response. Although known facts about the disease are well-described, I believe it’s important to restate them here because they help to explain some of the complexities and challenges of this pandemic, that may not be fully appreciated or understood.
Jeffery Allen: (23:03)
The virus that causes COVID-19 is very contagious and is spread by ordinary activities like coughing, sneezing, or even speaking. Initial efforts in preventing the spread of COVID-19, were directed at identifying those who were symptomatic and their close contacts. However, in March, it was reported that asymptomatic cases were being observed and now it is believed that up to one third or more of COVID infections are asymptomatic and may be spreading the virus. Whether in the community or in correctional facilities, these two characteristics, its infectivity and asymptomatic transmission, have created particular challenges in preventing the spread of the disease. One aspect of the disease that is well known is its ability to cause severe illness and even death. Preliminary projections estimate the COVID-19 mortality rate to be as high as 10 times greater than seasonal influenza, and that it may ultimately take the lives of 1% of the population. Without question, this is an infectious disease that must be taken very seriously. Yet with no vaccine to prevent the disease and essentially no reliably effective medication to treat the disease, we must rely almost exclusively on tried and true infection prevention and control measures as the foundation of containment to limit the spread of the virus.
Jeffery Allen: (24:21)
It is to that end, that the Bureau has been directing much of its efforts, which began in January as director Carvajal mentioned, when the Bureau started screening all newly arriving inmates for exposure, risk factors, and symptoms, followed a little later by screening of staff. As this threat evolved into a pandemic of unprecedented proportion in our lifetimes, the Bureau’s response evolved with it, to include an emphasis on those foundational infection prevention practices. We also implemented universal screening for all newly arriving inmates, and when the recommendation for wearing face coverings in public was published, Bureau institutions began implementing it within 24 hours. Regarding testing, the recommended strategy was almost completely symptom-based during the first month or more of the pandemic. These recommendations changed in late April to include consideration for testing asymptomatic people, with a compelling clinical or public health priority. With the greater availability of testing supplies, rapid point of care testing and commercial laboratory capabilities for high volume testing, the Bureau is working diligently to expand its own testing strategies for asymptomatic populations, including all new inmates on arrival, test in test out strategies for quarantine, testing close contacts, and a number of other criteria.
Jeffery Allen: (25:42)
In closing, I’d like to emphasize that the Bureau has collaborated with local, state and national health authorities to manage this pandemic. We have endeavored to follow or even exceed the CDC’s guidance as it evolved to meet the growing challenge. From very early in the pandemic, we developed a close working relationship with CDC representatives, which continues to this day. Although our relationship did not start with COVID-19, it has continued to deepen during the pandemic as a result of the mutual care and concern we have for the health and wellbeing of inmates and the staff who serve them. I or someone from the BoP health services team has frequent, even daily contact with them at times, especially when there are new developments or particularly challenging questions arise.
Jeffery Allen: (26:28)
The CDC has provided valuable expertise to the BoP and has given us the opportunity to review and contribute to their COVID-19 guidance for corrections. Our collaboration has included CDC consultations and site visits at some BoP institutions, as well as opportunities for BoP contributions to studies that we hope will provide valuable information for the management of COVID-19 in correctional settings. Chairman Graham, ranking member, Feinstein, and members of the committee, this concludes my statement.
Henry Lucero: (27:03)
Chairman Graham, ranking member Feinstein, and distinguished members of the committee. Thank you for the opportunity to appear before you today on behalf of US Immigration and Customs Enforcement, enforcement and removal operations, to discuss the agency’s response to the COVID-19 pandemic. Before I highlight the many efforts made to aid in detection, prevention and mitigation of the spread of COVID-19, I want to recognize all the officers, healthcare workers and the staff at ICE, who have remained vigilant during this unprecedented time. The ICE mission, even absent a pandemic is complex and requires intricate planning and execution. But in the face of this pandemic, our staff has exemplified true commitment to the health and welfare of ICE detainees, as well as unparalleled professionalism and adaptability. These attributes allow us to develop, implement, and refine policies, procedures, and best practices. The health and safety of ICE detainees are the agency’s highest priorities. In my written testimony, you will read many actions taken, but there are details I would like to highlight. Since the onset of COVID-19 reports, our medical component, ICE Health Service Corps, has been continuously tracking CDC guidance and updates, and collaborating with state and local health partners. They have been updating agency’s infection prevention and control protocols to reflect the evolving dynamics of the virus, and issuing guidance to staff and detention contractors regarding appropriate mitigation, screening and management protocols for those with potential COVID-19 exposure or infection. Like any law enforcement agency working with a detained population in congregant setting, ICE is well versed on how to manage infectious disease. We have existing procedures in place for other infections diseases, including tuberculosis, measles, mumps, and varicella. Although different than COVID-19, we were able to quickly respond by rapidly modifying and bolstering these existing plans during the onset of COVID-19. Transparency remains critically …
Henry Lucero: (29:03)
Of COVID-19. Transparency remains critically important in our response to this pandemic, as we continue to debunk myths and correct misinformation. Our agency immediately created a dedicated webpage highlighting all modifications to ICE operations. This webpage is updated daily and is accessible, not just by the media or congressional staff, but by the general public. Some examples of statistics outlined on the website include the number of COVID-19 cases diagnosed at each facility, the number of detainees tested, and our current detainee population totals. Since January, ICE has worked continuously to develop, implement, and refine COVID-19 protocols in accordance with CDC guidelines for detained populations. In March, ICE convened a working group of medical professionals, disease control specialists, detention experts, and field operators to identify enhanced measures, to minimize the spread of COVID-19. ICE also created a COVID-19 specific plan outlining pandemic response requirements, which built upon previously issued guidance, but was tailored for the current situation.
Henry Lucero: (30:05)
ICE continues to take important steps to safeguard the health of those in its custody, including efforts to allow for increased social distancing. ICE significantly reduced its detained population by reevaluating the custody of the current detained population, continuing to remove detainees without any COVID signs or symptoms, and further scrutinizing the need for detention at the time of arrest. ICE had more than 55,000 single adults in detention during the summer of 2019. By early February, this number had fallen to approximately 40,000. By the end of May, it was further reduced to approximately 26,000. ICE has also recommended that all its detention facility operators make efforts to reduce the population to 75% of capacity or less. As of last week, the detained population has remained at approximately 44% across all facilities, with a dedicated ICE population, and maintained below 75% across all facilities that house any ICE detainee population.
Henry Lucero: (31:01)
At this time, ICE removal operations continue with heightened precautions in place and we expect that foreign governments will honor their obligations to accept the return of their nationals. However, ICE does not remove detainees who are not fit for travel, which includes any individual confirmed or suspected of having COVID-19. Effective in April, in an effort to avoid the removal of detainees with active COVID-19 cases, ICE began testing a subset of detainees prior to removal, regardless of manifesting symptoms. There are additional details of our work that I can share with you today, but it’s most important for you to know that ICE continues to closely follow developments related to the COVID-19 pandemic, and to issue guidance inline with recommendations issued by the CDC. When ICE officers and agents continue to fulfill their law enforcement mission, we remain firmly committed to ensuring the health and safety of individuals in our custody, employees, contractors, and the general public. Thank you again for the opportunity to appear before you today, to discuss this important issue. I look forward to answering your questions.
Dr. Ada Rivera: (32:11)
Good morning, Chairman Graham, ranking member Feinstein, and distinguished members of the committee. Thank you for the opportunity to speak with you today on behalf of ICE Health Service Corps, or IHSC. Today I will discuss IHSC’s role and response to the Coronavirus pandemic. Since the first reports of COVID-19, IHSC has tracked the Centers for Disease Control and Prevention, CDC guidance about the virus. Using CDC’s information, IHSC has updated infection prevention and control protocols, worked with state and local health partners, and issued COVID-19 medical and public health guidance. This work is ongoing and continues today. The CDC remains the authoritative resource for information on how to protect individuals and reduce exposure to COVID-19. CDC updated its guidance frequently as the pandemic evolved and public health experts learn more about COVID-19. As a result, ICE medical and operational personnel monitor and review this guidance daily and continually update applicable policies and procedures.
Dr. Ada Rivera: (33:28)
ICE implemented staff entrance screening to protect our detained population and each other from exposure. This includes temperature checks and presence of symptoms. Health staff perform a detailed medical screening when a person is booked into an ICE facility, assessing every detainee for fever and symptoms of COVID-19. If symptomatic, a medical provider then determines in accordance with CDC guidance, whether COVID-19 testing is needed. In some cases, facility medical staff collect specimens from detainees. In other cases, especially when the individual requires a higher level of care, ICE transports the detainee to a local hospital. While at the hospital, the treating provider may decide to conduct testing. Medical staff at ICE detention facilities also consult with local departments as appropriate and notify local health authorities of detainees who test positive for COVID-19.
Dr. Ada Rivera: (34:25)
Since the epidemic began, ICE continues to evaluate its testing process and enhance its testing capabilities. Facility medical staff request test skits and testing supplies from state, local, or commercial labs. ICE continues to work with federal, state, local, and private sector partners to acquire their own test kits as shortages and testing supplies continue. In May, ICE acquired 10 Abbott ID NOW COVID rapid testing machines and 2000 kits from the Department of Health and Human Services. ICE anticipates receiving an additional 2000 tests per month from Health and Human Services for the foreseeable future. Preventing the spread of COVID-19 within detention is a high priority. ICE established protocols including a pandemic plan to manage the spread of infectious diseases. ICE immediately medically isolates individuals who show symptoms of fever and or respiratory illness. Medical isolation protocols include housing detainees in private medical housing rooms if available. Additionally, facility staff implement transmission-based precautions, including hand hygiene and use of personal protective equipment. If a single medical housing room is unavailable, ICE may place a detainee in other areas of the facility to house him separately from the general detained population.
Dr. Ada Rivera: (35:56)
ICE also implements cohorting of exposed asymptomatic detainees, which is equivalent to the practice of quarantine. Cohorting lasts for the duration of the most recent 14 day incubation period. Such protocols are important to prevent transmission to the overall detained population and staff. Detainees who subsequently develop fever and or symptoms are referred to a medical provider for evaluation and management. ICE ensures that all those in custody receive timely access to medical services and treatment, including the initial health intake screening and followup for any existing or emergent health conditions. Detainees who develop fever or COVID related symptoms at any point in time while in detention are referred to a medical provider, evaluated, and if suspected of having COVID-19, are housed in medical isolation and considered for testing at the medical provider’s discretion.
Dr. Ada Rivera: (36:55)
In conclusion, I wanted to thank you again for the opportunity to appear before you today to discuss a critical role of IHSC during this COVID-19 epidemic. I look forward to answering your questions.
Chairman Graham: (37:09)
Well, thank you all very much and please tell those who work for you, we appreciate what they do. It’s no easy job being in the corrections business. Dr. Allen and Dr. Rivera, when it comes to determining who to be released, to home confinement, or early release, whatever program we’re talking about, how much input do you have in terms of recommending to the prison officials, who should be released based on underlying healthcare conditions?
Dr. Jeffery Allen: (37:46)
Senator, the CDC has published criteria for risk factors for severe COVID-19 disease. We follow those criteria and those are one of many factors used in determining-
Chairman Graham: (38:01)
But, do you have input as a physician?
Dr. Jeffery Allen: (38:05)
Chairman Graham: (38:06)
Okay. So they actually seek your input.
Dr. Jeffery Allen: (38:09)
Chairman Graham: (38:10)
Are you familiar with the case where the young woman died shortly after giving birth?
Dr. Jeffery Allen: (38:15)
Yes sir, I am.
Chairman Graham: (38:15)
Tell us about that.
Dr. Jeffery Allen: (38:19)
Inmate Circle Bear, arrived in transport from the US Marshals Service. She was immediately placed into quarantine. During her quarantine period, she was determined to be symptomatic and was sent out for an evaluation. She was sent back to the institution and then sent back out once again. It was determined that she had COVID and that she needed an emergency caeserean section and subsequently was placed on a ventilator as her condition de-compensated. They treated her aggressively with the treatment that was available at the time, but sadly it was unsuccessful and she passed. We are grateful and celebrate the survival of her child, but it does illustrate the seriousness of the COVID illness.
Chairman Graham: (39:13)
Would she have been eligible for not being in confinement to begin with?
Michael Carvajal: (39:19)
Chairman Graham, can I answer that question please?
Chairman Graham: (39:22)
Michael Carvajal: (39:23)
As Dr. Allen stated, inmate Circle Bear came to us from the United States Marshals Service directly from a county jail. She had spent approximately five months in two different county jails in South Dakota after she pleaded guilty and then was awaiting sentencing. We got her on March the 20th of 2020, and within eight days, we screened her with the protocols as Dr. Allen said. We put her in quarantine as with our procedures. She was asymptomatic, she presented no symptoms. On March 28th, she had some complications due to her pregnancy so we took her to the outside hospital as Dr. Allen said. She had no symptoms at that time. She was returned to the facility. On April, or I’m sorry, on March 31st, she had respiratory issues. That’s why we took her back out to the local hospital.
Michael Carvajal: (40:16)
Now keep in mind that she was recommended by the judge for substance abuse treatment and recommended referral to a medical center. That’s why she came to us at FMC Carswell. We took her to the hospital, she deteriorated quickly and as Dr. Allen stated, she gave birth via C-section. She tested positive while in the hospital on a ventilator. I asked the exact same question Chairman when this came to my attention. I got daily reports on inmate Circle Bear, something that normally doesn’t happen in my level, because I absolutely was concerned about this case. What we did-
Chairman Graham: (40:53)
What was she confined for?
Michael Carvajal: (40:56)
I don’t remember the exact charge Chairman. I don’t remember the exact charge. It had to do with possession of drugs in her home or something like that. I do know that she was sentenced to 26 months with a three year supervised release. The judge did recommend placement in a medical center due to her substance abuse issues. I believe that he felt that we could provide that treatment. And I think we could have. It was very unfortunate what happened to her?
Chairman Graham: (41:20)
I got you. Okay, Dr. Rivera, when it comes to ICE confinement, we’re at 51% capacity, 44% capacity. Is that right?
Henry Lucero: (41:35)
Across the entire ICE detention networks are 44%.
Chairman Graham: (41:38)
Okay. How much input do you have Dr. Rivera about how to manage these facilities in terms of dealing with COVID?
Dr. Ada Rivera: (41:48)
We provide ICE with listings of all detainees that have the chronic care conditions or the high risk conditions that were included in the guidance by CDC. So we provide that listing twice a week to ICE. And obviously with this listing, it’s for them, where we’re identifying the detainees that have the chronic care or the high risk condition, and letting ICE know that these are individuals that they should be looking at the case to determine if they need to remain in custody
Chairman Graham: (42:26)
Very quickly. I’m sorry, I don’t mean to go over. Mr. Lucero, is that right?
Henry Lucero: (42:31)
Chairman Graham: (42:32)
So when you get these recommendations from Dr. Rivera, do you look at alternative confinement for people who have underlying healthcare conditions?
Henry Lucero: (42:42)
Yes, sir. Every case that is on that list is looked at on a case by case basis. We don’t have a system where we input a risk tool. They’re actually evaluated by deportation officers and their supervisors. They take into consideration their criminal histories, their immigration histories, their risk of flight, their risk of national security, risk to public safety. If they are subject to mandatory tension by the Immigration and Nationality Act, their outlying conditions are all taken into consideration. If they are deemed to not be a risk of flight, not a danger to the public or a flight of risk, then they potentially are released. So every case is evaluated on a case by case basis.
Chairman Graham: (43:28)
Thank you. Senator Feinstein.
Senator Feinstein: (43:29)
Bit of a surprise. Thank you. Thank you very much, Mr. Chairman. Let me begin here. Director Carvajal, approximately 5,200 Bureau of Prison inmates, my understanding is, has tested positive for COVID-19, along with approximately 600 BOP staff. Two facilities in my state, California, Lompoc and Terminal Island have alone accounted for over 1700 of these cases. I understand that the Bureau has informed my staff that when all inmates at the low security Lompoc facility were tested, nearly the entire inmate population tested positive for the virus, though most we’re not displaying symptoms. It seems to me there’s a real problem in California’s federal prisons. Doesn’t this show that the current infection control measures are not working?
Michael Carvajal: (44:38)
Thank you Senator Feinstein for allowing me to give you some background on that. I will defer here shortly to Dr. Allen to explain the disease control itself. But I will tell you, the things that we did as was explained earlier, COVID is something that a lot of people didn’t know about and our care level system at FCI Terminal Island, which is a care level three, by nature of how we manage our inmates, that institution managed a high level of inmates who had underlying health issues to begin with.
Senator Feinstein: (45:09)
Maybe I could. Could I stop you just because my time is so limited?
Michael Carvajal: (45:12)
Senator Feinstein: (45:12)
Maybe it would be helpful if you tell us what adjustments have been made to the Bureau’s infection control practices to meet the COVID challenge.
Michael Carvajal: (45:24)
Okay, I will defer to Dr. Allen.
Senator Feinstein: (45:26)
If any. And if none have been made, please say that.
Michael Carvajal: (45:29)
I will defer to Dr. Allen, I think who can best answer that question, Senator.
Senator Feinstein: (45:35)
May he? Dr. Allen, if there’s no objection, could you answer the question please?
Dr. Jeffery Allen: (45:41)
Yes, Senator. We’ve mentioned the evolution of the management of COVID several times during this hearing so far. As knowledge is gained, we implement those new practices. So for example, in early April, the wearing of surgical masks. And then as time passed, the ability to test a much wider group of people who are now asymptomatic. What you have seen at Terminal Island and what you have seen at Lompoc has occurred in other correctional facilities across this country, and it illustrates the infectivity of this disease. And it also illustrates the difficulty in controlling it in correctional environments.
Senator Feinstein: (46:25)
Well, I have some experience in correctional environments. Let me, this is a long time ago, but, doesn’t this show that there’s huge difficulty with the closeness of people? And that in order to really prevent some of these numbers, if you have 1700 cases, that’s a lot of cases. So, wouldn’t one conclude that the department has to change how these inmates are housed to prevent the transfer of the disease?
Michael Carvajal: (47:00)
Senator Feinstein if I may, I can answer that for you. We’ve already begun looking at that. What we learned from this disease, as I was telling you, that what has helped us manage our inmates in the past using care levels is actually what created this problem under COVID. We are assessing our capacity and we are looking at ways as you stated, to social distance. What we did immediately to mitigate these things at Terminal Island and Lompoc and many of our facilities is we had to create space. Prisons by design are not made for social distancing. They are on the opposite made to contain people in one area. These are open dorm style, barrack style, low security facilities. So we are looking at ways to do that. We had created alternative living space. At Terminal Island specifically, we contacted the US Coast Guard immediately, and we put up about 10 tents.
Michael Carvajal: (47:48)
We also converted a gymnasium and some other areas so that we could create distance in there, because we understood that, we learned this on the fly. At Lompoc, we utilized alternative living space and quickly put up tents. We also put a 50 bed medical tent up so that we could create space and built an infirmary. All of these are things that we normally don’t do in a prison, but we did that for the exact reason you stated. Because we learned early on that we needed to open up and create space. In all of these institutions where we had this problem, they were all open dorm style, barrack style living. And what we are doing is we are currently assessing our capacity throughout all of our facilities so that we can look at maybe converting other institutions that have cells so that we don’t put these vulnerable inmates in that situation again.
Senator Feinstein: (48:41)
Well, thank you. I very much appreciate that. I’m familiar with prisons. I used to set sentences for women convicted of felonies and sentenced to State Prison in California. So I appreciate that very much and I may just come see. Director Lucero, the Centers for Disease Control and Prevention have issued guidance specifically for correctional and detention facilities. There are reports however, that ICE is not following this guidance, including not providing basic hygienic products. Are detainees required and I hate to have to ask this but I do, required to purchase their own soap? And if they can’t afford it, is it then provided? If not, can these detainees follow CDC hand washing guidance to prevent the spread of COVID?
Henry Lucero: (49:44)
So all our facilities are following CDC guidance. Soap is given for free.
Senator Feinstein: (49:50)
Take on the adequate because this has been in press all over. Take on the adequate question of soap not being available.
Henry Lucero: (49:59)
Right. So we have seen no longterm issue of soap not being available. We do our own inspections of detention service managers that make sure our contractors have those supplies, they have hand sanitation. So we are confident that it is not an issue. We have seen reports from our staff that have shown up to surprise inspections where maybe one hand sanitizer station was empty. But 20 feet away, there was another one that was full. So we recognize that, and there are some short term issues like that, but they’re fixed right there on the spot.
Senator Feinstein: (50:35)
So you are informing us, because this is an article in The San Diego Union-Tribune on the 10th of April of this year. That all employees and prisoners are provided with sanitary products.
Henry Lucero: (50:56)
Yes Senator. At intake, they are generally issued a three in one, a three one is shampoo, soap. And those three, I’m sorry, soap, shampoo and cleansing. Maybe not soap, a bar of soap, it’s going to be used for all three. Kind of something that we could purchase ourselves. When that runs out, they are given another one for free. They do not have to purchase that at our facilities.
Senator Feinstein: (51:28)
And that’s every federal prisoner in the United States?
Henry Lucero: (51:33)
That is the detainees that are in ICE custody. So we operate over 200 different facilities, some owned and operated by ICE, some that we have contracts with, private vendors, and those with county sheriffs. So every single facility by ICE standards is required to give those individuals those hygiene kits.
Senator Feinstein: (51:55)
Chairman Graham: (51:58)
Senator Feinstein, we’re-
Senator Feinstein: (52:00)
Oh, I’m sorry.
Chairman Graham: (52:00)
Okay, a little bit over. Go ahead, wrap up.
Senator Feinstein: (52:03)
Just one quick one. The CDC guidance for testing, stating that people showing symptoms in congregate living should be given high priority for testing. What is the information about ICE’s protocols for determining when an individual in custody is tested? When are they tested?
Henry Lucero: (52:27)
So I can start and then defer to Dr. Rivera. Individuals are generally tested when they’re showing symptoms of COVID-19
Senator Feinstein: (52:36)
Not till then? Not until then?
Henry Lucero: (52:39)
Generally that’s true.
Senator Feinstein: (52:41)
Henry Lucero: (52:41)
We have started testing at a certain facility at intake and this week, we’re going to expand that to 22 different facilities. So as the availability of testing becomes available, our goal is to test everyone at intake. And I can tell you when they come in, they are cohorted, and not to general population as they enter into our ICE facilities. So no one is exposed to general population for at least 14 days and in some instances, 21 days.
Senator Feinstein: (53:09)
Well, let me just say this. I’m very interested in seeing that everyone is tested and not, if you have to wait, the test is so simple. If you have to wait, you may be spreading the disease.
Henry Lucero: (53:24)
I agree. The availability of testing is what kind of controlled this. Actually today we’re starting saturation testing at two facilities. So voluntarily every detainee will be tested at two facilities as well as the staff that works there.
Senator Feinstein: (53:39)
Thank you. Thank you, Mr-
Chairman Graham: (53:40)
Senator Grassley: (53:42)
Thanks Mr. Chairman for holding today’s hearing and also for your commitment to hold an equally as important hearing on the issues dealing with George Floyd’s murder and the use of police force use, use of force and solutions how we can heal and move forward because of that situation. And as Senator Durbin and I have worked together like on the First Step Act, I’m glad to work with him on the issues he’s raised about the pandemic in the prisons and the use of home confinement to help with that issue. And we did have that phone call that he referred to with General Barr where General Barr told us about the guidance he’s put out. A hearing like today is very important to make sure that DOJ and Bureau of Prisons are following through properly with that guidance.
Senator Grassley: (54:54)
So my first question would be to Director Carvajal. Just a short explanation of why home confinement is important part of BOP’s COVID-19 response. But more important for this hearing, and for my question, some critics argue that increased use of home confinement during the pandemic can jeopardize public safety. What precautions are being taken to ensure that prisoners in home confinement are not a danger to public safety?
Michael Carvajal: (55:32)
Thank you, Senator. I appreciate the opportunity to talk about our home confinement. Since the passage of the CARES Act and consistent with the Attorney General’s guidance of March 26 and April 3rd, we have increased our home confinement and we currently have over 6,000 people in home confinement, another 6,000 in our residential reentry centers. That’s over 12,000 in community custody. And we do absolutely take public safety as a priority. Every one of these cases is individually assessed based on some criteria. We ensure that people who have violence in their offense or sex offenders or any terrorism related are absolutely not going to go out to the community because we have to balance public safety. We also take serious making sure that they have a viable reentry plan, relocation plan.
Michael Carvajal: (56:25)
Because what we don’t want to do is place people back into the community where they sometimes victimized people. And we make sure that we verify that. That is what is one of our priorities. Public safety, and keeping in mind the respect for the law and the judicial process that placed them there. These folks were placed in our custody for a reason. We respect that they need to serve out their sentence. And a lot of times people use the word release to home confinement. They’re actually still in our custody Senator. They are transferred to home confinement.
Senator Grassley: (56:59)
Best practices are only effective when they’re adequately measured for their impact and success. So director Carvajal, how is the Bureau of Prisons measuring the success of meeting the CDC standards and stopping the spread of COVID-19 in your correctional facilities?
Michael Carvajal: (57:20)
Senator, I think that where we’re at today in the short time when this pandemic started, we have about 1400 inmate positives today. We had at one time. We have 3000 recovered. So what I’m trying to say is that we have, at this point, more folks recovered, both staff and inmates. And I think that that shows that we are beginning to flatten the curve. This was a disease that we know little about, and I have relied heavily on Dr. Allen’s expertise, as well as the medical professionals in his contact with CDC to make decisions on how to do that. And I explained some of those earlier. I can defer to dr. Allen for specifics of how we-
Mr. Michael Carvajal: (58:03)
… for those earlier, I can defer to Dr. Allen for specifics of how we use that information if you would like.
Speaker 2: (58:06)
Let me go to Dr. Allen, I’m going to ask him his question and in answering my question, he can do what you want him to do. Prison staff and their communities are often forgotten when discussing COVID-19 and detention facilities. Their dedication is greatly appreciated during these times. A frontline major to stop the spread of COVID-19 is to increase prison protection equipment, personal protective equipment, and testing. Does every inmate and every member of staff who wants to be tested for COVID-19 have the opportunity to do so? And if not, how do you plan on expanding testing availability?
Dr. Jeffrey D. Allen: (58:55)
Thank you for your question, Senator. We are expanding our capabilities for testing right now. And we have created some criteria based on the availability of testing resources for a given institution. We are not currently recommending that all inmates be tested unless those supplies are available. That we have created a priority system, not dissimilar to the one the CDC has, although we’ve gone into greater detail as it relates to managing in an inmate population. So testing symptomatic patients, testing exposed patients, testing new intakes.
Dr. Jeffrey D. Allen: (59:39)
And then going beyond that, testing inmates going out to the community, coming back from the community, being released. So we are expanding those capabilities. We do not yet have the strategy in place to test all inmates. Testing of staff, we rely heavily on relationships and community partnerships for the testing of staff. We are not currently testing our own staff. Our healthcare resources, our healthcare staffing resources are primarily, those levels are primarily for primary care of the inmate populations in conventional situations.
Dr. Jeffrey D. Allen: (01:00:18)
Now that we’re in contingency and crisis scenarios where operations are severely effected directing them to test staff would detract from their ability to manage the inmate population and provide them healthcare. So we’re reliant upon community partnerships. We’ve seen this in a number of locations, the CDC has done mass testing at institutions, local and state health departments have done so as well as the local clinics that are set up for civilian frontline workers and critical infrastructure workers.
Mr. Graham, Chairman: (01:00:58)
Senator Durbin: (01:01:00)
Thank you, Mr. Chairman. Mr. Lucero, you’re in charge of ICE enforcement removal. This year, the acting DHS Secretary, Chad Wolf, and the acting Head of ICE, Matt Albence, both stated unequivocally that ICE will effectuate removal orders against DACA recipients if given the opportunity to do so by the Supreme Court. That would then be your job to effectuate those removals. So I’d like to ask you, how does ICE plan to carry out the removals of DACA recipients planned by the Trump administration?
Mr. Henry Lucero: (01:01:33)
Sir, thank you for the question. So there is no current plan, but ICE as you know does not make the decisions if someone should be removed. Those are generally made by an immigration judge or by an arresting agency if they’re subject to expedited removal. ICE carries out those lawful orders and will continue to do so.
Senator Durbin: (01:01:51)
Of course the court process is at the highest possible level now before the Supreme Court, are you saying that there has to be another judicial hearing before you would actually try to deport anyone currently protected by DACA status?
Mr. Henry Lucero: (01:02:07)
No, sir. I’m simply saying that in the immigration context that some individuals that we remove have had their due process, if they’re ordered by an immigration judge, if there is no appeals pending and there’s no impediment to removal, ICE will remove those individuals to their home countries.
Senator Durbin: (01:02:23)
And so since this decision from the Supreme Court could literally come down any day, do you have such a plan in place for the removal of these 800,000 individuals?
Mr. Henry Lucero: (01:02:34)
No, sir. There is no plan or current planning for that situation.
Senator Durbin: (01:02:39)
May I ask you another question? Are you familiar with the zero-tolerance policy of the administration?
Mr. Henry Lucero: (01:02:45)
Yes, I am aware of it.
Senator Durbin: (01:02:46)
Do you believe that any aspect of that policy is still being used to forcibly separate children, infants or toddlers from their parents?
Mr. Henry Lucero: (01:02:58)
No, I’m not aware of that happening.
Senator Durbin: (01:03:01)
So may I ask you a question about this? On May 13th and May 14th of this year, ICE presented detained families at Berks, Dilley and Karnes with an unconscionable and unnecessary choice: either separate from their children or stay together in indefinite detention during COVID-19 pandemic. The press report says that sobbing and scared families told their lawyers, that ICE officers presented them with forms in English, that the officers told them to sign. This is in May of this year explaining that they could send their children away. These children are as young as one, two and three years old, learning to walk and talk in detention. Are you familiar with this?
Mr. Henry Lucero: (01:03:48)
I am familiar with the media reports. Yes, sir. And I can explain that this is the Flores litigation that continues at our family residential centers. What happened in this scenario is routine parole reviews that to show compliance to the court had to be done in a certain amount of time. So this is nothing really new that has happened. The thing that was new here was it was happened in a short amount of time before the next court hearing to satisfy the court’s request.
Senator Durbin: (01:04:19)
So you’re saying that in May of this year, just two or three weeks ago in these three facilities that these families with children, some one, two and three years old were being handed a form in English to sign over the presence and rights of their children?
Mr. Henry Lucero: (01:04:40)
No, sir. I did not say that. So what I said is it was a normal parole review. And in some instances that is not a legal binding document. It’s just to record responses from parents regarding sponsorship of the juveniles. And in some instances to prove that that happened, ICE officers would ask the parents to initial or sign the bottom of the form, but it was never a waiver. It was never a binary choice. It was simply a parole review.
Senator Durbin: (01:05:08)
I’m not sure what you mean by parole review. Could you explain that?
Mr. Henry Lucero: (01:05:12)
Sure. For the Flores litigation, it is a respect to the juveniles that are at our family residential centers, that-
Senator Durbin: (01:05:21)
These are infants. These are toddlers, one, two and three years old. They’re not juveniles.
Mr. Henry Lucero: (01:05:26)
They’re between the ages of one and up to 16. I can tell you right now that there are approximately 300 total families in ICE custody today.
Senator Durbin: (01:05:39)
To your knowledge, has ICE ever deported a person who was infected with COVID-19?
Mr. Henry Lucero: (01:05:46)
Not that we were aware of. We are aware of reports that after they have returned to their home countries, in some countries, they have tested individuals that were positive, but there was no known positives to ICE that were removed actively with COVID-19.
Senator Durbin: (01:06:01)
Is it standard procedure for you to test those who are being deported before they are deported?
Mr. Henry Lucero: (01:06:07)
There is a removal checklist that is completed for every removal and every transfer of individuals that are in our custody. That is a symptomatic questions that are asked by healthcare professionals, as well as a temperature check prior to boarding planes. In some countries, by bilateral agreements with those countries, we are conducting testing of every single individual that is removed.
Senator Durbin: (01:06:28)
How many countries?
Mr. Henry Lucero: (01:06:30)
I don’t have that specific information in front of you, but I’m happy to provide that to you, sir.
Senator Durbin: (01:06:34)
But it is not standard procedure from what you have said, unless there is this agreement with another country to test a person before we deport them from the United States to determine whether they are infected with COVID-19?
Mr. Henry Lucero: (01:06:47)
Today, that’s accurate. Yes, sir.
Senator Durbin: (01:06:49)
And if you did deport… I’ll ask Dr. Allen, what do you think of the notion of deporting those who are positively tested for COVID-19? Is that a dangerous medical decision?
Dr. Jeffrey D. Allen: (01:07:04)
Senator, I’m not involved in a deportation process and so commenting on it would, I think be outside of my purview. I can give you an analogous situation. We do have inmates who test positive and then their release date comes up and they must leave our system even though they are positive in those situations. So there are some situations in which that must happen. What we do in those situations is we call ahead to the local health authorities or the state health authorities and notify them of this situation, so that plans can be made to manage that case safely and protect the public from ongoing infection.
Senator Durbin: (01:07:48)
Mr. Lucero, are similar precautions taken when you deport those who may be positive for COVID-19 and are untested?
Mr. Henry Lucero: (01:07:57)
Again, we’re not aware of any positive cases that were showing symptoms or known to be positive that have been deported. Again, we’re trying to do more testing of these individuals at removal, but I can tell you at intake, we have accepted cases that have known to be positive and known to be exposed into our custody that are been transferred from other jails and prisons around the country.
Senator Durbin: (01:08:18)
Without testing those who were deported, this is willful ignorance. Thank you, Mr. Chairman.
Mr. Graham, Chairman: (01:08:25)
Thank you. Senator Hawley.
Senator Hawley: (01:08:28)
Thank you, Mr. Chairman. Mr. Carvajal, could I start with you? Am I pronouncing that correctly by the way, sir?
Mr. Michael Carvajal: (01:08:32)
Yes, Senator, Carvajal.
Senator Hawley: (01:08:34)
Thank you. Let me ask you about how the Bureau of Prisons considers and evaluates inmates for potential early release to home confinement or some alternative to detention. First under normal circumstances, can you just give us a view prior to the coronavirus, I’m talking about how long did it typically take BOP to evaluate a prisoner’s suitability for an early release program, like compassionate release, for example?
Mr. Michael Carvajal: (01:08:57)
Thank you, Senator. The home confinement program is a process that takes weeks or sometimes months under normal circumstances. So trying to do it during the COVID has been quite the challenge. The reduction in sentence procedures also take a little bit longer. That’s why during the COVID pandemic, the method, the most efficient method, timely method we have chosen to do is home confinement.
Senator Hawley: (01:09:22)
Can you give us a sense of how the evaluation that you would typically do, which you’ve just described that could take weeks or months, how that compares to the evaluations that you’re doing now when granting early release to inmates because of COVID-19?
Mr. Michael Carvajal: (01:09:34)
Yes, Senator, we have since the issuance of the memorandums from the Attorney General in the criteria in the passage of The Cares Act, we have tried to shorten the process as much as possible while actually dealing with COVID. The same staff are doing this. We take it public safety we have to weigh out and then we go through there and we evaluate them based on criteria. We prioritize it. What we did is we had about 27,000 inmates in our system that had at least one COVID risk factor.
Mr. Michael Carvajal: (01:10:05)
And we started with reviewing those individuals because the passage of The Cares Act, obviously it was pertaining to COVID. We narrowed that down. We compared it to the criteria and guidance we were given. We got down to a list of about 4,000 and that was our priority. We have since expanded some of the criteria. Like we started considering minor disciplinary infractions on the inside so that we could get… We got another 1,300 there to release in that aspect.
Senator Hawley: (01:10:36)
Let me ask you this. So the evaluations are shorter you’re telling me, are they less thorough?
Mr. Michael Carvajal: (01:10:42)
Absolutely not, Senator. They are actually very thorough. These are individualized assessments. We take them very serious. We must weigh public safety. I said earlier that one of the things we have to do is we have to verify a release residence. The last thing we want to do is potentially release someone back into home confinement to a community where the victim is at, or potentially releasing them back to where they victimized. And we take that as a serious responsibility of public safety.
Senator Hawley: (01:11:11)
Let me just ask you about releasing inmates into the community, where they’re from and how that could be done safely. One thing that concerns me is the lack of coordination and resources on the part of pretrial detention and probation officers who are charged with supervising inmates who have received early release. Or tell me this, are we putting public safety at risk by accelerating early release of inmates without adequate resources to monitor those individuals?
Mr. Michael Carvajal: (01:11:39)
Thank you, Senator. We have used utilized contracts and alternative ways of monitoring. GPS obviously is a common system. We have modified it because of social distancing and lock downs and things of that nature to phone utilizing face time, phone check-ins, things like that, location monitoring. I can’t comment on what the US Probation does, I’m not familiar with what they’re doing. I do know that we consult with them and the courts prior to when we verify these release plans to ensure that everyone is aware that this person is being transferred into the community. Again, I remind everyone that we aren’t releasing these individuals from custody. They are still in our custody and we’re responsible for them.
Senator Hawley: (01:12:23)
Let me just ask you this. I’ve seen some people basically say that BOP should release most prisoners. Do you think it would ever be inappropriate balancing of your priorities to put the larger community at risk by releasing violent or potentially violent offenders?
Mr. Michael Carvajal: (01:12:38)
Senator, I will tell you that we take seriously this tasking that The Cares Act did. We certainly care about the inmates in our custody. We try to care for those vulnerable inmates the best as possible and I think we’ve done that, our numbers show that. It is a difficult situation to be put in and we’re requesting in the court and the judicial process. There was a process that these individuals went through in the judiciary, a judge and or a jury recommended placement at one of our facilities.
Mr. Michael Carvajal: (01:13:08)
And at times we are being put in the position to review and question those sentences and we take that serious. So we look at vulnerability. We have to take into consideration public health, public safety, as well as the safety of the individual in our custody and weigh that out.
Senator Hawley: (01:13:24)
Just a couple brief questions here, just about basic facts. How many people have been issued an early release by BOP and have been rearrested? Do you know?
Mr. Michael Carvajal: (01:13:32)
I don’t have that information in front of me, Senator.
Senator Hawley: (01:13:36)
I’ll submit for the record, I’d like to know how have been rearrested for a violent crimes? How many have been rearrested on firearms charges? So we’ll get that to you. Thank you, Mr. Chairman.
Mr. Graham, Chairman: (01:13:48)
Thank you, Senator Hawley. Senator Coons.
Senator Whitehouse: (01:13:53)
I think it’s Senator White.
Christopher Coons: (01:13:55)
I think that Senator Whitehouse was planning to-
Mr. Graham, Chairman: (01:13:58)
I’m sorry, I’m just going by the script here. Senator Whitehouse. Sorry about that.
Senator Whitehouse: (01:14:01)
Thank you, Chairman. Thank you, Chris. Director Carvajal, in the Corrections Act, the law required a risk and needs assessment system and it was Congress’s instruction that it was to be public, indeed it was to be available on the DOJ website. You guys responded with a program you called PATTERN, P-A-T-T-E-R-N. You provided two reports on how PATTERN would work. You gave us a committee staff brief on how it would work and everything seemed to be going consistent with the law that we passed on a bipartisan basis. I’ve read in ProPublica, a report that there’s a new 20 page policy document that is supervened the PATTERN Program that has not been disclosed either to Congress or to the public. Could you explain what is going on there?
Mr. Michael Carvajal: (01:15:01)
Thank you, Senator, for the opportunity to clarify that issue. I am familiar with that article and I will tell you that the article was referenced to a draft policy that was somehow released. It wasn’t approved, it wasn’t approved for issue. I will tell you that-
Senator Whitehouse: (01:15:17)
Are you following the draft policy now? Are you following the original PATTERN program?
Mr. Michael Carvajal: (01:15:22)
We are following the approved PATTERN Program, Senator. The PATTERN is DOJs scientifically validated tool that assesses risk and needs within the Bureau of Prisons. They recently made some changes after receiving public outside stakeholder feedback and also with the independent review committee and what they did was make adjustments to it in order to remove any actual or perceived biases for people of color. And they did that because PATTERN uses instant offense information, prior convictions, and it also uses institution adjustment. So-
Senator Whitehouse: (01:16:01)
Yeah, pretty familiar with PATTERN because you briefed us on it. We just wanted to make sure we knew what the new program was. Let me turn to Warden Spalding’s testimony from the Federal Medical Center Fort Devens in a case called Pena versus the United States. The warden testified, first he said, “that BOP,” and I’m quoting him here, “said not to use COVID-19 as a sole determination of reduction in sentence or compassionate release.”
Senator Whitehouse: (01:16:35)
Then he was pressed a little bit and he went on to say, “I don’t consider COVID-19 as part of the criteria for reduction of sentence or compassionate release.” And he testified that the exemption of COVID-19 as a part of the criteria for reduction of sentence or compassionate release was based on guidance from quote, based on guidance from Central Office, which sounds like you. I’m wondering about that and before you answer on that, I also want to add further testimony, which he testified to, he said, “central office sends down recommendations to review a specific inmate. If they don’t meet the criteria or they do meet the criteria and if they ask for us to send it up anyway, then I’m required to do that.”
Senator Whitehouse: (01:17:32)
The judge stopped him and said, “You’ve been asked by the Central Office about a specific inmate who didn’t meet the criteria? And he said, “Yes, sir.” So when I put that together, it sounds as if there is not at the institution level, the capacity to have COVID-19 be a determinate in the criteria for reduction of sentence or compassionate release, but that a name can be sent down from Central Office for review, I guess, for a waiver, an exception to get around that policy.
Senator Whitehouse: (01:18:04)
Was the warden testifying correctly? What is the situation here? I’ll just put my cards on the table. It seems to me that this information should be going from the facility up to Central Office, not from Central Office down. And it makes it look like people who have connections can get the attention of Central Office and then get themselves considered for a waiver that the local institution’s folks on hand who are looking at prisoners, aren’t able to make. That doesn’t seem fair or appropriate, could you clarify that for me?
Mr. Michael Carvajal: (01:18:38)
Thank you Senator. I’m not particularly familiar with Warden Spalding’s testimony, but what I will tell you is that we have procedures in place. The reduction in sentence… the compelling and extraordinary is the exact verbiage, and it is somewhat of a lengthy process. Keep in mind, Senator that we make a recommendation to the United States Attorney’s Office who petitions the court. The court is a deciding official of whether or not that individual gets a reduction in sentence.
Mr. Michael Carvajal: (01:19:05)
We have been using the home confinement method because it is quicker. And as far as giving guidance to the field, in order to quickly triaged that 27,000 with COVID risk factors, we did run rosters in order to prioritize. And the criteria that we utilize was out of the Attorney General’s guidance memos. So everything that we’ve done is out there on the record. There’s no secret to what we’re doing.
Senator Whitehouse: (01:19:36)
Mr. Chairman, my time has expired, but I would like to ask while we’re here gathered in the committee, because questions for the record from the Department of Justice very often get ignored. I’d like to ask that the question for the record that I’m going to pursue on this to explain why the Central Office is able to do this and the local facility is not? What the considerations are for the Central Office and whom they determine should be sent down for this kind of review and how this related to the Manafort case?
Senator Whitehouse: (01:20:10)
I’d like to get the support of the committee and getting those questions answered rather than just thrown in the usual QFR bin.
Mr. Graham, Chairman: (01:20:17)
Yeah. Be glad to. We’ll make sure that that happens. And I’ll help in any way I can.
Senator Whitehouse: (01:20:22)
I appreciate that sir. Thank you very much.
Mr. Graham, Chairman: (01:20:24)
Senator Cruz: (01:20:26)
Thank you, Mr. Chairman. Welcome to each of the witnesses. Mr. Lucero, during this pandemic, the US has closed the Canadian-Mexican Border to all non-essential travel. Moreover, CBP is no longer detaining illegal immigrants encountered at the border in holding facilities. It is instead returning those aliens promptly to the country they entered from. How have these policies helped stop the spread of the coronavirus?
Mr. Henry Lucero: (01:21:00)
Thank you, sir. At least for ICE detention, there’s been a significant reduction in cases transferred from CBP into ICE detention facilities, which kind of shows the big reason why we’re down to 26,000 individuals in custody. Obviously people not entering the country or we don’t know where they’ve been, if they potentially were exposed to COVID or actually have it. So by CBP doing these quick expulsions back to Mexico or Canada, or sometimes ICE even removing individuals under Title 42, under that CDC Order. Those individuals are not coming into the United States or not staying very long.
Senator Cruz: (01:21:40)
Are there certain countries that are being less than cooperative in this practice?
Mr. Henry Lucero: (01:21:48)
As far as expulsions, I would say no. That there are, we’re generally removing individuals back to Mexico and Canada. Mexico has been a great partner in taking them back. As far as the other side of Title 8, there are some countries, for instance, Guatemala is not accepting removal flights today. And we’re seeing an increased population of Guatemalans that are in custody.
Senator Cruz: (01:22:13)
Would it be ISIS hope and intention to continue these policies after this pandemic has passed?
Mr. Henry Lucero: (01:22:21)
These policies are, they’re under the guidance of the CDC Title 42 Order. So once that is lifted, the quick expulsions ability may not be there, but obviously those that are entering illegally, if they’re not claiming asylum, a quick removal is the fastest and best process.
Senator Cruz: (01:22:41)
So have y’all seen a material improvement in terms of your enforcement mission as a result of these rapid expulsions?
Mr. Henry Lucero: (01:22:50)
Well, we have. It’s easier to manage COVID-19 having less people in custody. Obviously, COVID-19 pandemic kind of hinders how we operate. We’ve also had employees, our ICE officers that have contacted this disease were trying to social distance like everyone in the US is. So it has been difficult. So having to manage less people is helpful.
Senator Cruz: (01:23:13)
Dr. Rivera, as I understand it, ICE is actively testing its detainee population and it’s ramping up its testing capability. As of May 22nd, just over 40% of tested detainees tested positive. That seems shockingly high. Are these numbers correct? And if so, why are the numbers so high?
Dr. Ada Rivera: (01:23:41)
The numbers are increasing because of the fact that we have more testing capability and of course we’re testing more individuals. So that in of itself is going to help us identify more positive cases. I think that we’ve implemented our infection control practices, our use of personal protective equipment, our education of our detainees, our surgical masks for our detainees, all these different resources that we have to provide better infection control for our detainees I think that is assisting us in being able to control and manage.
Dr. Ada Rivera: (01:24:28)
Right now, we’re going to start testing our detainees this week during intake. And that’s going to assist us also in determining any positives and continuing in our cohorting or a quarantine for the 14 days before going into general population. So I believe that all these methods that we have for prevention are really going to assist us in continuing to decrease those numbers. But to answer your original question, yes, the numbers are high, but it’s because we are testing more at this point.
Senator Cruz: (01:25:07)
Mr. Lucero, as I understand it, some 324 aliens have been released from ICE custody by judicial order during this pandemic. 245 of those detainees had criminal convictions or criminal charges, those charges included homicide, attempted murder, rape, aggravated assault, sexual contact with a minor, cruelty towards children, drug trafficking, money laundering, grand larceny, and possession of controlled substances.
Senator Cruz: (01:25:43)
I know that ICE didn’t authorize their release, this was pursuant to judicial order. I think it is deeply troubling that we are releasing violent criminals into our community. Can you tell us what steps ICE is taking to ensure that violent criminals who are being ordered released are being deported quickly or otherwise prevented from carrying out other acts of violence?
Mr. Henry Lucero: (01:26:11)
Sure, unfortunately some of those cases have been released with those criminal histories, as you know by judicial order that were subject to mandatory detention. On those releases we were able to put ankle bracelets on some individuals. They are being tracked on order of supervisions. And within the entire universe of our population, there are our reviews that we do public safety is at the utmost risk.
Mr. Henry Lucero: (01:26:40)
So we continue our enforcement posture that where we know that there are fugitives or criminal aliens that are in the communities. ICE is still making arrest of those violent felons. Those individuals are taken into custody and going through removal proceedings and our goal is to remove them from the country once their cases have been concluded.
Senator Cruz: (01:27:01)
So my time has expired, but I would ask that you follow…
Mr. Henry Lucero: (01:27:03)
… that’d been concluded.
Speaker 3: (01:27:03)
So my time has expired, but I would ask that you follow up after this hearing with specific data of those 324 aliens with criminal history, who’ve been released. 324 have been released. How many have been rearrested and how many have been deported?
Mr. Henry Lucero: (01:27:19)
Yes, sir. We’ll get that information for you.
Speaker 3: (01:27:21)
Chairman Graham: (01:27:21)
Thank you. Senator Klobuchar.
Senator Klobuchar: (01:27:23)
Thank you very much, Chairman Graham. We have seen people across the country mobilized and demand systemic change, including to the prison system, which we’re talking about today. But we have seen this cry for change in every city in the country in the last few days. As we all know, this came out of a horrendous murder case in my state where George Floyd was murdered at the hands of police. That case is now being prosecuted, the murder case, by our attorney general Keith Ellison. And I have called beyond that. And I know some of my colleagues have joined me. I appreciate that, for a systemic review of the Minneapolis Police Department from top to bottom and full scale review of pattern and practice by the justice department.
Senator Klobuchar: (01:28:13)
But as you and I discussed this weekend, Mr. Chairman, it goes beyond that. I appreciate that we’re going to have a hearing on this, but I think we all know that we all talk about this, but what matters is action. And there’s so much we can do when it comes to changes in police practices, public data, police accountability, as well as criminal justice reform.
Senator Klobuchar: (01:28:34)
The other place, which is the subject of this hearing that we’ve seen this kind of disparity day in and day out is in our prison system. And this is everything from during the pandemic to before. And my concern is the pandemic can’t really be divorced from this, but it’s put a big spotlight on what happens every single day to defendants. And in this case, we know that we’ve seen a number of white collar defendants, including Paul Manafort, released because of fear that they might get coronavirus. And then we see other cases of people that are in there for low level drug offenses, where they haven’t been released. And that is why I’m asking Director Carvajal, I know we did this in a letter, but we really haven’t gotten an answer for you to release comprehensive data, demographic data on who has been not just impacted, but who has been released and their race, their charges, those kinds of things, so that we are able… Our role in Congress is oversight. And I need that information. So tell me if we can get that information.
Mr. Michael Carvajal: (01:29:48)
Thank you, Senator. Our releases or our transfers to home confinement, the demographics actually mirror our general population demographics, which indicates a fair review in process. We-
Senator Klobuchar: (01:30:03)
So do you have the specific pandemic data?
Mr. Michael Carvajal: (01:30:07)
I’m sorry, Senator, I-
Senator Klobuchar: (01:30:09)
The pandemic data.
Mr. Michael Carvajal: (01:30:12)
Senator Klobuchar: (01:30:13)
Mr. Michael Carvajal: (01:30:15)
I don’t have the data in front of me, but I do know that it mirrors our population, which indicates a fair process.
Senator Klobuchar: (01:30:23)
We just have such limited time. Could I get the data for the pandemic, since the pandemic started, who has been released because of the pandemic?
Mr. Michael Carvajal: (01:30:34)
Yes, Senator. I don’t have the specific data, but I’ll take that back and get with my staff and see what we can get you.
Senator Klobuchar: (01:30:41)
Okay. Thank you. On April 28th, as noted by Senator Durbin and I am proud to be working with him on this bitcoin bill that we’re doing that I think would be really helpful, Andrea Circle Bear died in federal custody four weeks after giving birth while on a ventilator after testing positive for coronavirus. She was serving a 26 month sentence for nonviolent drug offense. She also had a preexisting medical condition that in addition to her pregnancy made her more vulnerable to serious symptoms or death because of Coronavirus. And that’s what happened. Was she considered for home confinement?
Mr. Michael Carvajal: (01:31:21)
Thank you, Senator. As I spoke earlier about inmate Circle Bear, she came to us from the United States Marshall Service. On March 20th, we screened her for COVID in accordance with our guidelines in CDC guidance. She was asymptomatic. We put her in the 14 day quarantine. Eight days later on March 28th is when she was taken to the outside hospital. So she was in our custody. So little time, eight days, we took her out for pregnancy related issues. She was returned back with no symptoms. And three days later on March 31st, unfortunately she went back out with respiratory issues. She deteriorated quickly. We don’t have that data, whether or not she was released because within 11 days, she ended up in the hospital and unfortunately she never came back out. She gave birth on April 1st-
Senator Klobuchar: (01:32:17)
It’s a tragedy, but I guess I want to be able to have something of a legacy of this tragedy be that these cases are reviewed. So has there been changes made to the process since then and how many people who are convicted of nonviolent offenses who are actually medically vulnerable, like she was, including pregnant women who have been convicted, I repeat, of nonviolent offenses? Are they still in the Bureau of Prison facilities?
Mr. Michael Carvajal: (01:32:46)
I could tell you a Senator that we immediately reviewed all the pregnant women in our custody. There was over 30 at the time. We had placed 24 of those individuals in community confinement, five of them on home confinement. 24 of them went to our mothers and infants together program. Three of them were placed in the residential parenting program that we partnered with the State of Washington. The six or so that remained in our custody were because they weren’t eligible or appropriate for community placement. They either had a sex offense or serious mental illness in some cases or a detainer. So we review all of them. And I assure you that the inmates that are eligible, and taking public safety into account, we have released those inmates to our… I’m sorry, transferred them to home confinement.
Senator Klobuchar: (01:33:33)
And how did BOP decide to grant Mr. Manafort’s transfer?
Mr. Michael Carvajal: (01:33:38)
I can’t speak to any particular individual case Senator, but I will tell you that based on our criteria, we individually assess every one of these cases. I don’t get involved in individual cases, nor was Mr. Manafort’s case ever brought to my attention as a director. His case managers, there’s a process in which we go through and that was reviewed, as are all cases individually assessed. If there’s someone outside of the criteria, we have a high level review committee at our central office consisting of bureau leadership that reviews these cases. So we have procedures in place to review these cases that are questionable.
Senator Klobuchar: (01:34:19)
Okay. I’ll follow up on that. And I know I’m out of time, but I also will put on the record some questions about immigrant detention that I’m very concerned about as well related to the pandemic. Thank you.
Chairman Graham: (01:34:31)
Thank you. Senator Tillis.
Senator Tillis: (01:34:33)
Thank you, Mr. Chairman, and thanks to everybody for being present today for this hearing. Director Carvajal, I want to specifically ask some questions of you. As you know, Butner has got one of the largest facilities, 4,400 inmates, one of the largest in the United States. And sadly, we’ve had 13 deaths. My staff been tracking it on a daily basis, and I really want to thank the warden and the clinical director and everybody down there for being responsive to our requests. But we originally had an outbreak in a medium one facility. Now we’ve seen that that’s being managed, but we now have an outbreak in a low security facility, which is a little bit more difficult to manage the spread. So I was curious if you’re familiar with this situation down at Butner and what kinds of steps are being taken at this point. I sent a letter to the AIJ. We’re trying to get as much information as possible, make sure they have the resources, but I’d like your perspective.
Mr. Michael Carvajal: (01:35:36)
Thank you Senator, for acknowledging my staff at Butner. They’ve done a great job. That is a very difficult situation. It’s a very large complex. It’s a care level four complex, which means that by the nature of the facility, some of our most sickly vulnerable inmates are cared for there throughout the facilities. As you stated, the virus was brought into one of our facilities there and we’ve done everything we’ve can. I thank the warden and the staff there to mitigate it.
Mr. Michael Carvajal: (01:36:02)
One of the challenges that these large complexes is that again, as I stated earlier, prisons by nature aren’t made for social distancing, and we have to find creative ways to do that. One of the other challenges we face is that staff have to work in these facilities and they go and come. And that is something that we’ve been looking at adjusting. As far as the specifics to challenge it with the mitigation of the virus itself, aside from the things that we talked about, alternate living spaces, utilizing PPE, and following the CDC guidance, I can defer to Dr. Allen to tell you how we’re utilizing testing and such.
Senator Tillis: (01:36:40)
Thank you. Dr. Allen?
Dr. Jeffrey D. Allen: (01:36:41)
I’ve been in touch with the clinical director at FCC Butner. They are managing this outbreak consistent with the CDC’s guidance. I can’t tell you specifically exactly which unit they are using for isolation and which for quarantine, they are utilizing widespread testing and are collaborating very closely with the community to resource them for additional testing. They do have two Abbott machines, but they are also utilizing commercial laboratory testing procedures. For those who need hospitalizations, they are in contact regularly for treatment of those cases who are in the hospital.
Senator Tillis: (01:37:32)
And maybe back to the director, do you have information on the specific releases that have occurred down at Butner? How many are currently approved? How many are awaiting?
Mr. Michael Carvajal: (01:37:46)
Senator, I do not have any particular information on any specific institution, but we can take that back and see if we can get you information.
Senator Tillis: (01:37:57)
Well, thank you. I also want to make sure that we do get a follow up. Senator Haile asked a question about those who have released and what level recidivism we’re seeing among those who were released under this program. I’m also interested in the line of questioning that Senator Cruz had on the ICE detainees, who were released by court order. I think that information is going to be very helpful to us to determine to what extent… The original purpose of the program was to manage the spread of the virus. But to what extent have we caused other challenges as a result of the release. So I’ll look forward to seeing that information come back after this hearing. I guess the last question that I would have for any of y’all, what more do you need out of Congress to help you as you continue to do the best job you can under the circumstance?
Mr. Michael Carvajal: (01:38:52)
Thank you for the opportunity. I appreciate the support. And I will tell you that the support of Congress in asking us directly, visiting our institutions and coming to us with the request. Oftentimes things are talked about in the media, as I said, in my statement, misunderstandings of our operations. And we would be more than happy to answer questions and show you firsthand what we are doing, so that we can assure you that we are doing our best. And we have, as I said, staff that take much pride in what we do and every life in our care is important to us.
Senator Tillis: (01:39:34)
Well, if there’s anything I can do to help you all, particularly with the staff that are going into a dangerous situation, again, the whole Butner from the top down, have been a great work with. We want to make sure that we’re working for them up here. Thank you, Mr. Chair.
Chairman Graham: (01:39:47)
Thank you. Senator Coons.
Senator Coons: (01:39:49)
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 am 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.
Senator Coons: (01:40:16)
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 ICE does how many tests have been conducted and at each facility?
Mr. Michael Carvajal: (01:41:09)
Thank you, Senator. As you’re well aware, early on testing, it was hard to get. We now have 130 Abbott ID rapid tests 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. I direct you to Dr. Allen-
Senator Coons: (01:41:34)
Director, will you disclose this information for BOP 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?
Mr. Michael Carvajal: (01:41:47)
Yes, sir. I don’t have the information in front of me, Senator. I will you, I appreciate the acknowledgement 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.
Senator Coons: (01:42:07)
If you could briefly, Doctor, why not regularly disclose this information how many tests are being done at each facility?
Dr. Jeffrey D. Allen: (01:42:14)
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%.
Senator Coons: (01:42:52)
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, ICE does publish aggregate testing totals every day, but not by facility. I’d like to urge now that you’ve got testing that is up and running and at scale, that you be as transparent as possible across those issues.
Senator Coons: (01:43:17)
Director Carvajal, the AG’s April 3rd memo directed you to review all inmates who have COVID-19 risk factors for home confinement. But some inmates report being told they’re 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?
Mr. Michael Carvajal: (01:43:42)
Senator, we were, as you stated, reviewing prioritizing inmates who served at least 50% of their sentence or 25% of their sentence and had 18 months or less remaining. There was a quite a number. And as I stated earlier, the same staff that are making these assessments are also the ones that are working the 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’re eligible and they meet the criteria, then we do what we can to transfer them to home confinement.
Senator Coons: (01:44:22)
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. That 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.
Senator Coons: (01:44:54)
I’m out of my time. I’m going to ask one last question. If I might, Mr. Lucero, there are 4, 500 asylum seekers in your custody who UCAS has established have a credible fear of persecution or torture. It’s heartbreaking that people who escaped persecution made it to the United States are now enduring a pandemic in detention under longstanding ICE policy reaffirmed by this administration. They should generally be paroled, absent specific risk factors. Is ICE complying with this policy? And could you just say yes or no?
Mr. Henry Lucero: (01:45:29)
Senator Coons: (01:45:31)
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 BOP 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.
Chairman Graham: (01:45:59)
Yes. Senator Blumenthal. Yes, Senator Feinstein, if you’ll go vote, I’ll vote after you do. Senator Blumenthal.
Chairman Graham: (01:46:14)
Senator Blumenthal is not here. Senator Hirono. I’m sorry.
Senator Hirono: (01:46:19)
Last night in an alarming but not surprising move, the president called for the use of US military against the American people who were speaking out against the unrelenting violence and murder of black Americans in our country. And I was horrified to see the president of the United States use tear gas against peaceful protestors, so he could get a photo up in front of St. John’s Episcopal church. A photo op is not what we need at this pivotal moment. We need a leader who can do more than pay lip service to understanding our pleas.
Senator Hirono: (01:46:57)
But of course, this president is incapable of such leadership. It is incumbent on all of us to stand in unity, to speak out against the brutality and the dictatorial need to militarize our response. Mr. Chairman, I’m glad to hear that our committee will have a hearing on June 16th regarding police misconduct and use of force. We get to my questions. Mr. Carvajal, last September, Hawaii lost his only residential reentry center, RRC. And I had asked your predecessor if she would work with me to ensure that another such facility is opened and she indicated yes. So I would like to get your commitment that you will give us regular updates on what is happening with the solicitation for the reopening of such a center in Hawaii. Can I get that commitment from you as your predecessor had committed?
Mr. Michael Carvajal: (01:47:52)
Yes, Senator you can, I’m not familiar at this point with the specifics, but I do know that we are working towards getting a contract and I believe there’s a solicitation out.
Senator Hirono: (01:48:03)
Thank you very much. I know that there have been delays regarding solicitation. So I really appreciate your keeping me informed because as we talk about releasing people into our community, we need these halfway houses.
Senator Hirono: (01:48:16)
So for Mr. Lucero, you responded to Senator Durbin’s question about what you call a parole process. I would just like to understand what that involves, but it sounds to me as though parents with children, and you indicated there that you have some 300 families in your custody with children from one to 16 years of age, who would be covered under the Flores decision. And under this parole process, parents are asked whether they would waive their child’s right to be released under the Flores decision. Or keep their children with them, but being in detention. Isn’t that what happens under this parole process that you described?
Mr. Michael Carvajal: (01:49:13)
No, ma’am, not exactly. It’s a parole review that has to be conducted because of the Flores litigation. So we’re happy to provide a briefing of exactly what occurred and why it occurred. We’re also working with the court monitor in that case and the judge herself on explaining things, so that we don’t have kind of what happened in the media in the future and in explaining why things are being done, but we can provide that brief to you and others.
Senator Hirono: (01:49:45)
Certainly, the way it’s described is that the parents are asked to waive their children’s right to be released, and presumably they will be released with their parents. And that can’t happen. I don’t understand why that you are retaining jurisdiction over 300 of these families. I don’t know how many of them went through this parole process. How many of them during the process had access to legal counsel. And whether or not these decisions, these parole decisions are actually legally binding. So yes, I would like you to get me further information on that.
Senator Hirono: (01:50:25)
I also have a question about the unsafe use of cohorting. This is for you, Mr. Lucero, and also for Dr. Rivera that cohorting, my understanding is that this involves people who have tested positive to be cohorted with others… who may not have tested positive, whatever the case is called cohorting. I’d just like to ask you, what is the medical basis to justify ICE’s use of cohorting?
Dr. Ada Rivera: (01:51:04)
The utilization of cohorting, the term itself means that there’s a group of individuals that are under the same circumstances, that are put together. So our positive COVID cases, we medically isolate them. Those individuals are not the ones that are cohorted. We cohort the group that potentially were exposed to a positive COVID case in order to be able to… They’re housed together. They’re under the same circumstances. They are monitored regularly. And they’re cohorted for the incubation period of 14 days. If during that point in time, any of those individuals develop symptoms, they are tested. If they’re positive, they’re removed from the group and the clock starts ticking again on the 14 day quarantine or cohorting. Yes?
Senator Hirono: (01:51:54)
For these cohort of people then, even during the 14 days that they’re there, at any point, they can test positive and that… where the rest of the people, the 14 days of quarantine starts again, is that how it works?
Dr. Ada Rivera: (01:52:07)
Yes, ma’am. That is correct.
Senator Hirono: (01:52:09)
And that is deemed a medically a good way of isolating these individuals? Because they could be in quarantine for a long time at this rate.
Dr. Ada Rivera: (01:52:23)
If we follow the infection prevention guidelines and use personal protective equipment for staff that’s coming into the area that’s being cohorted. If we utilize these methodologies, we should be able to come to an end point as far as the identifying positive cases. But it is, to answer your question about it being an acceptable medical method, it is recommended by CDC guidelines as far as a way of mitigating the exposure to COVID-19.
Senator Hirono: (01:52:57)
Mr. Chairman, I have further questions that I will submit for the record.
Dr. Ada Rivera: (01:53:01)
Yes, ma’am. Absolutely. Senator Blumenthal.
Senator Blumenthal: (01:53:07)
Thanks Mr. Chairman. Director Carvajal, I think you’re aware of the court order of May 12th issuing a TRO in connection with the Danbury Correctional Center, correct?
Mr. Michael Carvajal: (01:53:28)
Senator Blumenthal: (01:53:32)
Can you tell me how many inmates at FCI Danbury have been screened to date for transfer to home confinement for service of the remainder of their sentences under that order?
Mr. Michael Carvajal: (01:53:49)
Senator, I don’t have the exact numbers for any particular facility in front of me today, but I will certainly take that back.
Senator Blumenthal: (01:53:56)
The court said on Friday that none have been released, is that correct?
Mr. Michael Carvajal: (01:54:06)
I’m not familiar with that information at this point, Senator.
Senator Blumenthal: (01:54:10)
Don’t you think in the two weeks, since the order, some should have been released?
Mr. Michael Carvajal: (01:54:16)
I assure you Senator that we have reviewed all eligible and COVID related cases. Again, I don’t have the particular numbers in front of me, but I will certainly take that back and get that information.
Senator Blumenthal: (01:54:28)
The court found that the plaintiffs in that case made a preliminary showing that FCI Danbury officials are “making only limited use of the home confinement authority as well as other tools at their disposal to protect inmates during the outbreak and that those failures amount to deliberate indifference, to a substantial risk of serious harm to inmates in violation of the Eighth Amendment.” Shouldn’t you know whether or not FCI Danbury is complying with that court order?
Mr. Michael Carvajal: (01:55:01)
Yes, Senator. With everything that’s going on, I’m sure that someone on my staff knows. I do not know those particulars. I will tell you that we reviewed people. Oftentimes, they’re not released because of a defense of violence or a sex offense, or they don’t have a viable release plan. Those are the things that keep them most often from not being released. Again, I don’t have the particulars, but I will certainly look into it.
Senator Blumenthal: (01:55:31)
Don’t you think though that there are many who would not pose a danger that could have been released in the last two weeks?
Mr. Michael Carvajal: (01:55:41)
Senator, we have a process in place where we have criteria. We review it. There’s also a secondary review for cases that are outside, vulnerable elderly people who are outside the eligibility. We do have a high level review committee based in our central office where they review those cases. And if appropriate, we have authorized-
Michael Carvajal: (01:56:03)
See those cases and if appropriate, we have authorized transfers the home confinement. I’m just not familiar with those particular numbers you’re asking me about.
Speaker 4: (01:56:09)
Well, I would submit very respectfully that we need to have those numbers. I’m going to ask you to commit to provide them by the end of the day.
Michael Carvajal: (01:56:18)
I will take that back, Senator.
Speaker 4: (01:56:21)
The court and its TRO also pointed to a Danbury inmate bulletin dated April 21, that listed eight criteria that inmates purportedly have to meet to be eligible for home confinement, including that the “inmate must have served at least 50% of their sentence.” The court said that criteria was invalid. Have you stopped using it?
Michael Carvajal: (01:56:50)
We utilized that, Senator, early on, in order to triage. We had about 27,000 inmates that met at least one COVID risk factor, and in order to try to get those people out as quickly as possible, we utilized that as a criteria along with [crosstalk 01:57:06]-
Speaker 4: (01:57:05)
Have you stopped using that length of confinement percentage or any other as a criteria in accordance with the court’s order?
Michael Carvajal: (01:57:15)
Again, Senator, I’m not familiar with that particular case. I assure you I will familiarize myself with it by the end of the day and get back.
Speaker 4: (01:57:24)
Well, wouldn’t you agree that what’s happening at Danbury FCI is typical of what’s happening at federal correctional institutions around the country? For you to be unable to give us information that’s relevant to whether you’re complying with a federal court order seems unacceptable. It’s the kind of information that would pertain to every other federal prison around the country. If you’re failing to release prisoners to home confinement at Danbury, where are you doing it acceptably?
Michael Carvajal: (01:58:02)
Senator, we’ve released over 6,000 to home confinement, transferred them to home confinement. We have a community confinement population of over 12,000, which includes the other 6,000 in our residential re-entry centers. 3,500 of those or more have been done since the passage of the Cares Act, and the Attorney general’s two memos to us. Again, we take public safety serious. We have a commitment to respect the law and the courts that put them in our care. And one of the reasons we use the 50% or so is people mistake that we are releasing these individuals to the community. They are still being confined and must be monitored and tracked, and that takes resources.
Speaker 4: (01:58:46)
I apologize for interrupting but my time is about to expire. Let me just say, and I want to repeat it. The court found that your practices at Danbury, which reflect practices around the country, “amount to deliberate indifference to a substantial risk of serious harm to inmates in violation of the eighth amendment.” And you’re coming here and saying you don’t know in effect whether you’re complying with a court order. I think that’s unacceptable. Thank you Mr. Chairman.
Chairman Graham: (01:59:23)
And please get him the information. Senator from Connecticut deserves that. Senator Booker.
Senator Booker: (01:59:37)
Thank you, Mr. Chairman. I know it’s been said already. The nation’s grieving right now. We’re now in the wake of this tragic murder of George Floyd. Communities across the United States, literally hundreds of thousands of Americans, are protesting or letting their voices be heard amidst the pain and anguish that was a wrought by the violence that we’ve seen, not just with the case of George Floyd, but we saw it with Brianna Taylor. We saw it with Mr. Arbery. And I know we’re here today to conduct an oversight hearing of the Bureau of Prisons and the U.S. Immigration and Customs Enforcement. We must acknowledge the way this global pandemic has laid bare the tragic reality facing black and Brown communities.
Senator Booker: (02:00:25)
I am grateful, Mr. Chairman, for you and your willingness to hold hearings on what’s happening right now. And I’m grateful for the sentiments expressed by my colleagues on both sides of the aisle. We have to press forward, but the issue of racial disparities and disparate treatment in all areas of our society, from healthcare, to environmental justice, to unconstitutional policing, this nation’s history of inequity is continuing to be exposed in a dramatic fashion, and exacerbated by this pandemic. And that is really true for our prisons. I’m grateful that Mr. Carvajal was willing to speak with me, and I want to just, again, express my appreciation for you taking that time. My staff asked specifically BOP staff in New Jersey to provide really critical demographic data on individuals who’ve been released to home confinement. We were told by BOP officials that it was difficult to get the requested data, as it’s not coded in that way. In other words, it’s not coded along racial lines. Your staff went on to say that demographics have played no role whatsoever, except for age in the decision making process during home confinement eligibility reviews.
Senator Booker: (02:01:46)
Yet public health data has revealed that the disproportionate impact of COVID-19 on communities of color, and black communities in particular, significant higher rates of contracting and dying from COVID-19. And so I’m deeply concerned that given the racial disparities of COVID-19’s impact, the Bureau of Prisons is not being more transparent with respect to that data. Data is critical. It helps us to hold people accountable. When we spoke on the phone early on in the crisis, I requested the data, and just last week I joined my colleague, Senator Warren, in sending you a letter to request among other things, this data. And so just a simple yes or no, will you direct your staff to provide the data to better inform members of Congress and the public about the impact of COVID-19 in your decision making?
Michael Carvajal: (02:02:39)
Thank you, Senator. I appreciate the ability to answer that. Our demographics for the people we’ve placed at home confinement, basically mirror our demographics of our population. That I do know. We place a lot of data on our public website. It’s a moving target, so to speak. It changes daily, sometimes by the hour. We make updates to it every day at 3:00 PM. I will tell you though that demographics don’t play anything into whether or not we’re going to place them on a home confinement.
Senator Booker: (02:03:11)
Mr. Carvajal, I really appreciate that. And from our judges to our prosecutors, we’ll all say the same thing, but implicit racial bias, we found, plays a role. Show me a judge, show me a prosecutor, show me a police officer that thinks that these things matter. But you know what? We see this even in sentencing. If you’re African American for the same crime, everything else held specific, African Americans will get longer term. So this to me is not what your convictions are. I know your honorable convictions. It’s about having the data to give an objective review, and so will you commit to getting us that data?
Michael Carvajal: (02:03:44)
Senator, I am not familiar how they gather the data, but I assure you I will take it back and see if there’s a way to get you the data you’re requesting.
Senator Booker: (02:03:53)
The First Step Act directed the Department of Justice and the BOP. This is a bipartisan bill, the First Step Act, to develop a risk assessment tool to assist your agency in providing recidivism reduction training to individuals under your custody so that they could receive earned time credits. This tool known as pattern or prisoner assessment tool targeting estimated risk and needs is actually now being used to help determine which individuals under BOP custody should be given priority treatment for transfer to community supervision. As Federal Public Defenders warned you in several letters, using pattern for this purpose is not appropriate, particularly when it is an incomplete tool that was designed for a different purpose altogether.
Senator Booker: (02:04:42)
Mr. Chairman, I’d like to ask for unanimous consent, and being it’s just Senator Harris and I here, to enter into the record two letters dated March 19th, 2020 and April 1st, 2020 from the Federal Public Defenders to the Department of Justice and the Bureau of Prisons, and one letter dated May 11th, 2020 to the Senate and the House. I’d like to submit those for the record.
Senator Feinstein: (02:05:03)
Senator Booker: (02:05:05)
Oh, thank you, voice of God, or maybe Senator Feinstein, not sure which one.
Senator Booker: (02:05:11)
According to a ProPublica report, sir, your agency has revised the risk categories in pattern from a public 2019 draft, excuse me, that makes it harder for incarcerated people to qualify for home confinement. Again, according to a ProPublica report, your agency has revised risk categories in pattern from a public 2019 draft that makes it harder for incarcerated people to qualify for home confinement.
Senator Booker: (02:05:43)
This is alarming and even more alarmingly is that only 7% of black men are classified as minimum risk compared to 30% of white men. As my friend, Senator Durbin pointed out, is it any surprise that President Trump’s campaign manager and personal attorney was released while black and brown people languished behind bars during this pandemic? And so, so here’s my question. [crosstalk 02:06:09] Why did the BOP revise the risk categories to make it even more restrictive, especially during a global pandemic, and do you commit to making those risk categories public in a show of complete transparency?
Michael Carvajal: (02:06:26)
Thank you, Senator Booker, for the opportunity to address that issue. I’m familiar with the ProPublica report, and I will tell you two things. First of all, pattern, our agency, the Bureau of Prisons did not create it. That is the Department of Justice risk tool. It’s scientifically validated by social scientists with input from the Independent Review Committee and the changes you’re talking to recently happened. They were published. If they haven’t been published, they will be. They actually enhance the tool to do exactly what your concerns were, to remove the actual or perceived bias to people of color.
Michael Carvajal: (02:07:05)
And what they did is they removed a couple of factors in there. One was the age of first arrest. The other was age of first conviction. And also whether someone voluntary surrenders or not, and in essence, it makes it more transparent and fair a tool. So I did not create the tool. Our agency did not create it. And those changes were made after listening sessions and feedback from outside stakeholders, from the general public, as well as the Independent Review Committee. So that’s how that came to be. We do utilize pattern as one of the criteria. A person to be eligible for home confinement has to have a pattern score of minimum. Okay? We have expanded the criteria in some cases. If an individual had a low pattern score and they meet the other criteria, we do consider them. That’s usually outside the original, so it goes to a higher level review, but we do look at those and we do try to get out as many of people to a home confinement as possible.
Senator Booker: (02:08:03)
I guess the last thing I just said was a yes or no. Do you commit to making those risk categories public and opening up to transparency, so there can be, as you said, you put value in independent review, social scientists and more, they would like access to this data, to again, to hold accountable, that issues of race or not being unbiased or not being unfairly influential?
Michael Carvajal: (02:08:23)
Senator, I will take that back to the Department of Justice. As I stated, the pattern is not our tool.
Senator Booker: (02:08:29)
But you’re using it, and we would like to know how you’re using it. It’s simple yes or no. You have the authority. Can you release the criteria publicly?
Michael Carvajal: (02:08:38)
I will take that back, Senator, and get back with you.
Senator Booker: (02:08:42)
Madam Chairwoman, thank you.
Senator Feinstein: (02:08:47)
Senator Harris, my colleague, my friend.
Senator Harris: (02:08:49)
Thank you, Senator Feinstein. My first comment is to the Chairman Graham, who I’m sure this will get back to him, but I know we’re going to have a hearing in about two weeks because of what has been clear on the streets of America. Our country is raw. America’s wounds are exposed. We have the death of the killing of George Floyd, Brianna Taylor, Ahmed Aubrey, and I call on this committee to have an emergency hearing. It cannot wait two weeks. It cannot wait two weeks, when we see what is happening on the streets of America. So I’d like to call on that.
Senator Harris: (02:09:33)
I join every comment that my friend and colleague Senator Booker said. I, as Attorney General of California, ran the second largest Department of Justice. We convened a group of leaders, including leaders in law enforcement in California, to agree that implicit bias, racial bias, and procedural justice are real in terms of the need to train law enforcement on those issues because they exist.
Senator Harris: (02:09:57)
And so I join in everything that Senator Booker said in terms of the importance of law enforcement and those of us who hold these important positions, acknowledging the existence of applied bias and the need to then deal with that. When we have individuals who have the power that government gives them to make decisions about who is confined in the terms of those confinement.
Senator Harris: (02:10:20)
I would also mention that 70% of the incarcerated population in America, men and women in America who are incarcerated, 70% are black and brown people. So when we are having this discussion, this is not only about the failure to protect detained people from the coronavirus, and in that way a humanitarian issue, it is also a racial justice issue, and we have to acknowledge it as such. And that point then being, I will ask, Director Carvajal, on May 13th, President Trump’s former campaign chairman, Paul Manafort was released to home confinement supposedly because of COVID- 19 concerns.
Senator Harris: (02:11:01)
The next week, Michael Cohen, President Trump’s former personal lawyer was also cleared for home confinement, the explanation again, being the virus. On the same day that Mr. Cohen Was released for transfer and cleared for transfer, 62 year old Fidel Torres died of COVID-19 in a federal prison. Mr. Torres had less than two years left on an 18 year sentence for a marijuana offense. These cases highlight, yet again, that we have two systems of justice in America. And this is part of why people are marching in the streets because of their righteous concern about whether we have actually been committed to equal justice under law. So, Director Carvajal, did anyone at the White House ask or suggest that the BOP transfer Mr. Manafort or Mr. Cohen to home confinement?
Michael Carvajal: (02:11:55)
Thank you, Senator. The answer to that question is no one asked of me. No one spoke to me from the White House or anywhere else about either of those cases. I typically, as a Director, although I am responsible, I do not get involved in reviewing any individual cases. Those cases start review at the local institution. They’re reviewed by the case worker that oversees the inmate. And as I explained earlier, in those cases where there’s eligibility issues or whether or not they should be considered, it goes to a higher level review. I am not personally involved in any of those, and no one has asked directly about any particular inmate.
Senator Harris: (02:12:33)
Can you by way of followup, find out if any of the people in the chain of command in making the decisions about the release of those two gentlemen, if any of those people were contacted by any official from the White House?
Michael Carvajal: (02:12:45)
Senator, I will take that back and see if I get that information.
Senator Harris: (02:12:48)
Okay, thank you. And last week our country, as you know, surpassed more than 100,000 deaths due to the coronavirus. The Bureau of Prisons has reported that at least 68 people have died in BOP custody, and obviously this falls squarely within your responsibility. So my question to you is that we have been demanding, frankly, answers since March 5th. I have sent letters. I have made phone calls. I have talked to everyone, including people at the Department of Justice, asking what are the tools that you are putting in place since that date, those months ago, to ensure that both the incarcerated population, as well as your staff, are not exposed to this deadly virus. And we have still not received a response to that. When are we going to get that?
Michael Carvajal: (02:13:39)
Senator, I appreciate your patience. There is, as you are well aware, there is a clearance process that our congressional correspondence through. And it is timely at times. Aside from that, we are dealing with a pandemic, so a lot of the people that answer the questions often are busy dealing with the pandemic itself. One of the things we did do, and I know you have spoken to some of our regional leadership in the institutions, and I appreciate that, is we have offered to speak directly on the phone because this data changes daily, sometimes hourly. And in order for a part of the clearance process is that by the time we submit something, it has changed. So we offer real time data. We are more than comfortable talking with you, and we prefer that because it’s quicker and we can get you the accurate information. As to what we’ve done since we’ve done a lot of things at facilities, particularly in California, your state, where we have been challenged with COVID.
Michael Carvajal: (02:14:37)
Social distancing is a challenge as you are well aware, and prisons aren’t made for social distancing. We’ve created quickly alternative living spaces. We’ve partnered with the Coast Guard to expand tents. There’s a lot of things we’ve done. As far what we’ve learned about the disease itself and how to manage it, I would defer to Dr. Allen who can explain our strategies with testing and such, if you would like.
Senator Harris: (02:14:59)
Have you done, Director Carvajal, in these many months, which of course each day we all watched that ticker tape and the hundreds of Americans that die each day, so we know that the people of our country can not wait for the bureaucracy of the government of our country to have a plan and address it and do an assessment of whether we are actually engaged in best practices. Have you engaged in any analysis and review in real time of what is happening in the federal prison system at each facility to determine whether those facilities are engaged in best practices? Because you are correct. I have talked to the wardens in the prisons in California, and I have really serious concerns about whether there is both the resources and the priority around keeping both the incarcerated population, as well as your staff safe. Have you done an analysis of what’s going on in the prisons in real time?
Michael Carvajal: (02:15:51)
Yes we have, Senator, and I will tell you that on two occasions we hosted best practices conferences with all facilities, and we utilized the seven to 10 hotspots we had, including the two in your state, to learn real time. We had those people come on and share with us the things that are being learned, and we were able to make adjustments. And I do believe that that’s one of the reasons that only seven to 10 of our institutions have remained hotspots. The things that we learned from those facilities that were shared with all the other wardens and medical folks, we were able to get ahead of this. So yes, we have done that. We’ve done it on two occasions and we continue to learn from that as we can.
Senator Harris: (02:16:31)
I would urge you to continue to do that. Thank you. So my understanding is that the Bureau of Prisons has moved less than 2% of the general prison population into home confinement. Do you believe that that number, 2%, is with those who are eligible for home confinement or what is your estimation, given all of the analysis you’ve been doing, of what percentage of the total population would be eligible for home confinement, but have not been transferred into home confinement? Because again, 2% seems particularly low given what I believe to be the eligibility criteria that you have.
Michael Carvajal: (02:17:09)
Thank you, Senator. There is a larger number if you look at the entire population that’s eligible. However, we do have to balance public safety. The people that traditionally are ineligible for home confinement is, to be perfectly blunt, is they are either sex offenders or they have crimes of violence where they have detainers.
Senator Harris: (02:17:30)
And on that point, Director Carvajal, because I only have a limited amount of time, how many have you, or what percentage, Director Carvajal, have you determined to be ineligible then?
Michael Carvajal: (02:17:40)
I don’t have that number in front of me, Senator, but I can take it back and get it.
Senator Harris: (02:17:44)
Okay, and can you get that to us by the end of the week? Because we have asked for that before as well.
Michael Carvajal: (02:17:48)
I will take that back, Senator.
Senator Harris: (02:17:50)
Okay. Can you commit to a timeframe during which you’ll get that back to us?
Michael Carvajal: (02:17:53)
I’m not sure what it entails, the process to get the information. I don’t want to tell you something I can’t do, but we will get it to you as quickly as possible.
Senator Harris: (02:18:00)
I appreciate that. Thank you. Thank you, Mr. Chairman.
Chairman Graham: (02:18:03)
Thank you all. I appreciate what you’re doing for our country and handling a very difficult circumstance. We have asked for a lot of reporting back as prompt as you can. I know it’s not easy, but just some advice about hearings in general. All of you accorded yourselves well. But if you got a temporary restraining order in a prison in Connecticut, you would expect the Senator from Connecticut to ask about that. So there’ll be a next time. So let’s just sort of think ahead. How can I help the committee understand what my agency is doing or not doing? So thank you all. Appreciate your hard work. And for all those under you, thank them too. I know it’s very difficult.
Michael Carvajal: (02:18:44)
Chairman Graham, may I say something about that?
Chairman Graham: (02:18:47)
Michael Carvajal: (02:18:47)
I absolutely should know about that litigation and I am familiar with it. I wasn’t exactly certain what the Senator was referring to or I would have been briefed. I’m certain that my general counsel knows about it, but I believe there’s still pending litigation. So I haven’t been briefed on that. I assure you that I will go back and ask questions.
Chairman Graham: (02:19:09)
I appreciate it, to get all the information requested by both sides of the aisle, and again, thank you for what you do for our country.
Senator Booker: (02:19:14)
Chairman Graham: (02:19:14)
Senator Booker: (02:19:16)
Just out of respect, and again, there’s a whole lot of concern here for our correctional officers and it’s a difficult time for this nation, and this work is dangerous and difficult. These are frontline responders that I know a number of us, Senator Harris [inaudible 00:23:31], worrying about them getting enough PPE and more. But the frustration I think we have is not for things that should have been anticipated, like Connecticut, is that we’ve written letter after letter asking for information that has not been produced by the Bureau of Prisons.
Chairman Graham: (02:19:46)
And you are rightly frustrated and I’ll get with… Lee will meet with your staff and we’ll inventory all the requests, and we’ll make sure that we get a prompt reply because oversight is about information being received by the committee. We will follow up. I promise you.
Senator Booker: (02:20:03)
Thank you, Mr. Chairman.
Chairman Graham: (02:20:03)
Thank you all very much.
Chairman Graham: (02:20:06)
Next panel, please. Do you have anything else, Senator Feinstein?
Senator Feinstein: (02:20:09)
I do not.
Chairman Graham: (02:20:10)
Okay. Thank you all.
Chairman Graham: (02:20:16)
But I promise all of the members will follow up to make sure that our letters are answered and their requests are fulfilled.
Senator Feinstein: (02:20:26)
The next panel is by video.
Chairman Graham: (02:20:27)
I think the next panel is by video, the magic of video.
Chairman Graham: (02:20:35)
We have two witnesses. Brian Sterling, the Director of South Carolina Department of Corrections. I know Brian very well and does a great job for the state of South Carolina. I look forward to hearing what Brian has to say about confinement at the state level. And Dr. Scott Allen, the University of California Riverside, is a professor emeritus at the University of California Riverside School of Medicine, Medical Director of the Access Clinic at Borrego Health, and co-founder at the Center for Prisoner Health and Human Rights at Brown. He serves as a medical consultant at the Office of Civil Rights and Civil Liberties at the Department Homeland Security monitoring medical care and immigration detention facilities. He previously served for seven years at his full time position for the Rhode Island Department of Correction, acting as Department’s Medical Program Director from 2001 to 2004, and graduated from Brown University School of Medicine. So with that, Brian, if you would lead us off the floor is yours.
Brian Sterling: (02:21:41)
Oh, would you like me to sworn, Senator?
Chairman Graham: (02:21:43)
Brian Sterling: (02:21:46)
Would you like me to be sworn, Senator?
Chairman Graham: (02:21:47)
Oh, that’s okay.
Brian Sterling: (02:21:49)
Okay. Good morning. My name is Brian Sterling. I’m the Director of the South Carolina Department of Corrections. I was appointed by then Governor Nikki Haley as Interim Director on October 1st, 2013, and later confirmed by the South Carolina Senate. I now serve in that role for Governor Henry McMaster.
Brian Sterling: (02:22:06)
My family has served this country in law enforcement for the better part of a hundred years. My great grandfather was a Boston police officer. My grandfather, Robert Hudson, rose up the ranks to become Chief Detective of Homicide for Suffolk County District Attorney, Newman Flanagan. I’m honored to be able to testify today representing over 400,000 correctional professionals from across the country. Thank you to Chairman Graham and ranking member Feinstein for this opportunity. I apologize I am unable to testify in person.
Brian Sterling: (02:22:36)
I understand that incarcerated individuals families are concerned about their loved ones at this time. I want to assure them and this committee that we are doing everything within our power to keep them safe. We are very proactive and took early measures to prepare for COVID to include the following: limited entry into our institutions to only critical staff. This decision was not made lightly as I know how vital volunteers and visitation are to incarcerated individuals and their loved ones. All offsite work for those in custody and care remain suspended. Anyone entering an institution is screened utilizing our screening tool. PPE was ordered and provided to our staff and incarcerated population to masks-