For the first time in two years, for the first time since the coronavirus swept through the federal prison system with deadly force, the Bureau of Prisons will soon face public oversight. BOP Director Michael Carvajal, handed the job in February 2020 by then-Attorney General William Barr, will answer questions Thursday before the Senate Judiciary Committee. The good news is that Sen. Richard Durbin (D-IL), now committee chairman, has long been a strong advocate for federal prison reform. The bad news is that this reform is achingly slow to materialize, even when there appears to be bipartisan support for it.
I have seen it before. Many times. A BOP director comes to Capitol Hill, promises all the right things under oath about treating prisoners better, then flees the scene and goes back to implementing the same harsh policies as before. It is crucial, therefore, that committee members of both parties this week spend less time making speeches and more time pressing Carvajal for specific answers. At a minimum, we need to know how much worse things got for prisoners (and staff) during the Trump era and what Carvajal and Congress are going to do to fix that. Carvajal should feel as though his job is on the line — or should be.
The questioning has to start with Carvajal’s responsibility for the BOP’s disastrous response to the coronavirus. It has been a train wreck from the start, from the failure to protect prisoners and staff at the outset of the outbreak to the recent refusal to share Covid-19 data with the public. In between, federal wardens blocked nearly all of the compassionate release requests from medically vulnerable prisoners and then contributed to the virus’s spread behind bars by allowing the transfer of prisoners from one facility to another without first testing them. As far as, we know there have been 50,000 cases and 243 deaths inside federal facilities. My guess is that both of those numbers are actually quite higher.
It won’t be enough for Carvajal to tell the committee that he accepts responsibility for all or most of this. Of course he’s responsible. Nor will it be enough for him to say the BOP is going to do better. There has to be meaningful accountability for what’s happened. Carvajal has to explain why so many of his wardens were so reluctant to grant these compassionate release requests, even though many were justified under the First Step Act. He has to explain why the BOP created waves of superspreader events by prioritizing federal executions during the pandemic. He has to explain more generally why the BOP was so cavalier with its own staff about the danger of the virus. The story of FCI-Oakdale in Louisiana, where officers were ordered to work even after being exposed to people who tested positive, is horrifying.
Carvajal also must answer directly for the BOP’s disappointing refusal to implement other provisions of the First Step Act. A prime purpose of the law is to help federal prisoners prepare for their eventual release so that they are more likely to safely integrate themselves back into society. That this is a sound policy ought to be a nonpartisan matter and obvious to even the cruelest wardens. Yet here, again, BOP officials stymied legislative intent. For example, they fought to stop, or at least slow, the stream of “good-time” credit that prisoners need to gain their release under the First Step Act.
To the dismay of prisoners and their advocates, the BOP has argued that a drafting error in the law justifies limits on the number of credits the agency is going to give prisoners. In other words, federal prison officials during the Trump administration undermined the First Step Act by interpreting it in a manner inconsistent with the broad purpose of the law. Does Carvajal stand by this interpretation?
I would like Carvajal to tell us all whether there are any other aspects of the First Step Act the Bureau of Prisons undermining.
Committee members should ask him about the vaccination of federal prisoners and the staff at the hundreds of federal facilities across the nation. How many prisoners have been offered shots? How many guards? How many have gotten their shots? What efforts are being made to educate the incarcerated about the coronavirus vaccine?
Carvajal also should be asked about the use of private companies running federal detention facilities. And he should be asked to describe the efforts he’s taking to combat the spread of white supremacy inside federal prisons — among both guards and prisoners.
Senators should press Carvajal about the persistent and often pernicious use of solitary confinement in federal prisons and immigration detention. There was a consistent and successful push during the Obama administration to reduce the number of people locked away in this fashion. From 2012 to 2015, according to the Justice Department, there was a significant reduction in the number of prisoners in isolated detention. But that vital reform was evidently reversed during the Trump era. So much so that four Democratic senators in 2019 asked the Government Accountability Office to review the BOP’s use of solitary confinement.
Carvajal needs to answer under oath this week: Are there more people in solitary in federal prison today than there were one year ago or two years ago? If so, why? What policies were implemented by William Barr and his predecessor Jeff Sessions to reverse the trend we saw during the Obama administration? More specifically, since mental illness is both a cause and effect of solitary, what happened to the first federal prison program establishing a “step-down” unit for severely mentally ill people? The welcome experiment, which began in 2014, was designed to help people transition safely from solitary to the streets.
To his credit, Durbin has consistently pressed the BOP to restrict the use of solitary confinement. He has consistently been on the right side of this issue. In 2013, for example, he demanded federal prison officials undertake a review of their isolated detention policies. The BOP made a few changes but left the bulk of the problems in place. Two years ago, Durbin co-sponsored legislation (along with then-Senator Kamala Harris) to both reduce the time prisoners are sent into isolated detention and increase the mental health services available to those prisoners. Does Carvajal support that legislation? If so, why? If not, why not?
I am so old (and I say this sighing) that I actually wrote a form of this column seven and a half years ago when Charles Samuels was BOP director. The good old days. We titled it “How Not to Hold an ‘Oversight’ Hearing’”. Ask me after this week’s hearing whether I think Durbin and company did better this time around. I am, you could say, cautiously pessimistic.
The views expressed are the author’s own and not necessarily those of the Brennan Center.
