Barr to speed releases at federal prisons hard hit by virus

Attorney General Bill Barr is ordering federal prison officials to intensify their efforts to release “vulnerable” inmates at three prison complexes that are struggling to contain major outbreaks of the coronavirus.

Barr said he’s seeking to speed the process of sending selected inmates at prisons in Danbury, Conn., Oakdale, La., and Elkton, Ohio to home confinement because of the danger serious levels of infection at those facilities pose to elderly prisoners and those with pre-existing health conditions.

“We are experiencing significant levels of infection at several of our facilities,” Barr said in the new memo dated Friday and obtained by POLITICO Friday night. “We have to move with dispatch in using home confinement, where appropriate, to move vulnerable inmates out of these institutions.”

Barr also said he was exercising for the first time expanded release authority Congress granted him in the stimulus bill known as the Cares Act that was signed into law by President Donald Trump last Friday.

Under previous law, federal prisoners were only eligible for home confinement after they’d completed 90 percent of their sentences. However, the new legislation allows for earlier releases if the attorney general formally declares an emergency, which he did Friday.

“The CARES Act now authorizes me to expand the cohort of inmates who can be considered for home release upon my finding that emergency conditions are materially affecting the functioning of the Bureau of Prisons,” Barr wrote. “I hereby make that finding and direct that … you give priority in implementing these new standards to the most vulnerable inmates at the most affected facilities.”

Seven federal prisoners have died from COVID-19 so far: five at the Louisiana prison Barr is prioritizing and two at the Ohio facility.

The tallies of infected inmates and prison staff have grown daily. As of Friday, 91 federal inmates were confirmed to be infected with the virus, up from 75 a day earlier. Confirmed staff infections rose to 50 from 39.

Barr announced last Thursday that he was instructing the Bureau of Prisons to increase early releases, particularly for older inmates who “no longer pose a threat.”

A total of 522 inmates were moved to home confinement following Barr’s directive last week, according to the Bureau of Prisons.

Barr’s public comments supporting early releases for some inmates seemed to be in tension with remarks Trump made Thursday, where he lashed out at state and local officials for endangering the public by releasing convicted criminals and said he might even step in to try to halt such releases.

Asked about what he was doing to protect prisoners, Trump seemed to downplay the danger to most inmates, arguing that many are young. He also appeared to boast that the federal government had not followed the states' lead of making additional releases due to the pandemic.

“I have not done that at all, but some states are letting people out of prison. Some people are getting out that are very serious criminals, in some states. And I don't like that. I don't like it,” Trump said during a regular White House briefing. “But it's a city or state thing in certain cases, as you know. I think maybe Philadelphia comes to mind. ... We don't like it. The people don't like it. And we're looking in to see if I have the right to stop it in some cases.”

Spokespeople for the Justice Department and the White House did not immediately respond to requests for comment on Trump’s view on early release for federal inmates and whether he was consulted on the Justice Department’s release plans.

Barr's new directive stresses that public safety concerns must be taken into account when considering whom to release.

"While we have a solemn obligation to protect the people in BOP custody, we also have an obligation to protect the public," the attorney general wrote. "That means we cannot simply release prison populations en masse into the streets. Doing so would pose profound risks to the public from released prisoners engaging in additional criminal activity, potentially including violence or heinous sex offenses."

While Barr emphasized that early releases must be assessed on a case-by-case basis, he said that some precautions normally taken in such situations could be waived in the current crisis, such as GPS monitoring for those being sent home.

Nearly 175,000 people are in federal criminal custody, chiefly in federally run prisons and centers run by private contractors. However, the vast majority of those incarcerated in the U.S. — roughly 2 million people — are in state and local criminal justice systems and serve in those prisons or jails.

Barr's latest move to step up releases came as lawmakers, criminal justice reform advocates and lawyers for inmates pressed the department to move more quickly to reduce the danger of coronavirus sweeping through federal prisons.

Two leaders of the House Judiciary Committee wrote to him Monday to urge more widespread releases as well as other steps to limit the virus' spread.

“We hope you will institute aggressive measures to release medically compromised, elderly and pregnant prisoners, as well as universal testing in BOP facilities — to protect everyone. … Urgent action is required because lives depend on it,” wrote Judiciary Committee Chairman Jerrold Nadler (D-N.Y.) and Rep. Karen Bass (D-Calif.), chair of the Crime, Terrorism and Homeland Security subcommittee.

Nadler, a frequent Barr critic, unequivocally welcomed the attorney general's latest directive.

“Today, we learned that Attorney General Barr has made a key finding related to the COVID-19 pandemic that triggers expanded authority under the CARES Act to transfer prisoners to home confinement. This is a positive development, and I urge appropriate and swift use of this power," the House Judiciary chairman said.

Despite Barr's move Friday, the Justice Department has continued to resist efforts by lawyers to involve the courts in making early release decisions. Prosecutors have argued for strict enforcement of a provision in federal law that says prisoners cannot seek release through a judge until their requests for release have been pending at the Bureau of Prisons for at least 30 days, or until the prison system makes a decision and internal appeals are exhausted.

"That process is particularly important at a time when the BOP is facing an influx of similar requests, and there is a pronounced need for the orderly and consistent resolution of these requests on the timeline that Congress enacted in the statute," federal prosecutors in New York wrote in one such case Thursday.

At a press conference last week where Barr discussed his desire to increase early releases, he said he wanted all inmates to be quarantined for 14 days before release in order to make sure they were not carrying the virus out of prison into the community. It was not immediately clear how hundreds of inmates had been released in the past week while accommodating those concerns.