The Bureau of Prisons Can Do More to Protect Communities from COVID-19

Perspective From a Federal Prosecutor

By Kenyen Brown, Former US Attorney for the Southern District of Alabama

A 30 year old mother named Andrea Circle Bear recently lost her life to COVID-19 after giving birth on a ventilator. She was the 30th federal prisoner — the first woman — to die of COVID-19. As a former U.S. Attorney, I see this tragedy as a wake-up call: the Bureau of Prisons needs to release the people in federal prison who do not pose a public safety risk.

Our prisons are becoming hot spots, accelerating the spread of COVID-19 through our communities. Of the 2,700 tests administered in the federal prison system, 70% have come back positive. When the virus spreads in prison, the corrections staff bring it home to their families and communities. Marion County, Ohio, has already seen a prison infection crisis become a community infection crisis. As COVID-19 spreads through federal prisons, we are all put at greater risk. Only by reducing the prison population will we be able to mitigate the damage.

I applaud Attorney General Barr for ordering the Bureau of Prisons (BOP) to release people who pose little public safety risk into home confinement. Unfortunately, BOP has blocked many releases of people who have served less than half of their sentences or made review of their requests a lesser priority — even if they have documented pre-existing health factors that would put them at greater risk of death if they were to contract COVID-19. Now is not the time for unnecessary restrictions on home confinement.

Having served as U.S. Attorney for the Southern District of Alabama, I understand that we need to incarcerate people who are a danger to the community. I also know that a large number of people in federal prison pose little threat to public safety today. Half of all federal inmates are there for drug offenses, and over a third of them had no significant prior criminal record. Since the average drug sentence is more than eleven years, many have aged out of a criminal mindset or lifestyle. Very few are criminal masterminds — many were drug mules or other small cogs in a giant industry, tempted by profits or their own addiction.

In Andrea Circle Bear’s case, she was serving 26 months for “maintaining a drug-involved premises” — allowing methamphetamine to be distributed out of her home on the Cheyenne River Sioux Reservation in South Dakota. Native American women are at elevated risk of becoming peripherally involved in drug offenses, since they more often become victims of sex crimes and domestic violence and often face barriers to seeking help. We should question why creative alternatives to incarceration were not considered for a young, pregnant Native American woman in this circumstance.

I hope that the Bureau of Prisons will make the ethical and practical decision to release as many non-violent/low risk of recidivating people as possible now, before it is too late. In these unprecedented times, it shouldn’t matter if a person who poses little public safety risk has served 37% of their sentence rather than 50%. This arbitrary threshold will undercut our attempts to control the infection rate, both inside the prison walls and in our communities. Thousands of lives are at stake.

Kenyen Brown is a former US Attorney for the Southern District of Alabama. He is a speaker for the Law Enforcement Action Partnership (LEAP), a nonprofit group of prosecutors, police, judges, and other law enforcement officials working to improve the criminal justice system.

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