[House Hearing, 117 Congress]
[From the U.S. Government Publishing Office]
THE FIRST STEP ACT, THE PANDEMIC, AND
COMPASSIONATE RELEASE: WHAT ARE THE NEXT
STEPS FOR THE FEDERAL BUREAU OF PRISONS?
=======================================================================
HEARING
BEFORE THE
SUBCOMMITTEE ON CRIME, TERRORISM,
AND HOMELAND SECURITY
OF THE
COMMITTEE ON THE JUDICIARY
U.S. HOUSE OF REPRESENTATIVES
ONE HUNDRED SEVENTEETH CONGRESS
SECOND SESSION
__________
FRIDAY, JANUARY 21, 2022
__________
Serial No. 117-51
__________
Printed for the use of the Committee on the Judiciary
[GRAPHIC NOT AVAILABLE IN TIFF FORMAT]
Available via: http://judiciary.house.gov
__________
U.S. GOVERNMENT PUBLISHING OFFICE
47-247 WASHINGTON : 2022
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COMMITTEE ON THE JUDICIARY
JERROLD NADLER, New York, Chair
MADELEINE DEAN, Pennsylvania, Vice-Chair
ZOE LOFGREN, California JIM JORDAN, Ohio, Ranking Member
SHEILA JACKSON LEE, Texas STEVE CHABOT, Ohio
STEVE COHEN, Tennessee LOUIE GOHMERT, Texas
HENRY C. ``HANK'' JOHNSON, Jr., DARRELL ISSA, California
Georgia KEN BUCK, Colorado
THEODORE E. DEUTCH, Florida MATT GAETZ, Florida
KAREN BASS, California MIKE JOHNSON, Louisiana
HAKEEM S. JEFFRIES, New York ANDY BIGGS, Arizona
DAVID N. CICILLINE, Rhode Island TOM McCLINTOCK, California
ERIC SWALWELL, California W. GREG STEUBE, Florida
TED LIEU, California TOM TIFFANY, Wisconsin
JAMIE RASKIN, Maryland THOMAS MASSIE, Kentucky
PRAMILA JAYAPAL, Washington CHIP ROY, Texas
VAL BUTLER DEMINGS, Florida DAN BISHOP, North Carolina
J. LUIS CORREA, California MICHELLE FISCHBACH, Minnesota
MARY GAY SCANLON, Pennsylvania VICTORIA SPARTZ, Indiana
SYLVIA R. GARCIA, Texas SCOTT FITZGERALD, Wisconsin
JOE NEGUSE, Colorado CLIFF BENTZ, Oregon
LUCY McBATH, Georgia BURGESS OWENS, Utah
GREG STANTON, Arizona
VERONICA ESCOBAR, Texas
MONDAIRE JONES, New York
DEBORAH ROSS, North Carolina
CORI BUSH, Missouri
AMY RUTKIN, Majority Staff Director and Chief of Staff
CHRISTOPHER HIXON, Minority Staff Director
------
SUBCOMMITTEE ON CRIME, TERRORISM, AND HOMELAND SECURITY
SHEILA JACKSON LEE, Texas, Chair
CORI BUSH, Missouri, Vice-Chair
KAREN BASS, California ANDY BIGGS, Arizona, Ranking
VAL DEMINGS, Florida Member
LUCY McBATH, Georgia STEVE CHABOT, Ohio
MADELEINE DEAN, Pennsylvania LOUIE GOHMERT, Texas
MARY GAY SCANLON, Pennsylvania W. GREGORY STEUBE, Florida
DAVID CICILLINE, Rhode Island TOM TIFFANY, Wisconsin
TED LIEU, California THOMAS MASSIE, Kentucky
LOU CORREA, California VICTORIA SPARTZ, Indiana
VERONICA ESCOBAR, Texas SCOTT FITZGERALD, Wisconsin
STEVE COHEN, Tennessee BURGESS OWENS, Utah
JOE GRAUPENSPERGER, Chief Counsel
JASON CERVENAK, Minority Counsel
C O N T E N T S
----------
Friday, January 21, 2022
Page
OPENING STATEMENTS
The Honorable Sheila Jackson Lee, Chair of the Subcommittee on
Crime, Terrorism, and Homeland Security from the State of Texas 2
The Honorable Andy Biggs, Ranking Member of the Subcommittee
Crime, Terrorism, and Homeland Security from the State of
Arizona........................................................ 5
The Honorable Jerrold Nadler, Chair of the Committee on the
Judiciary from the State of New York........................... 6
WITNESSES
Gwen Levi, Baltimore, Maryland
Oral Testimony................................................. 11
Prepared Statement............................................. 13
Homer Venters, Adjunct Clinical Associate Professor, NYU School
of Global Public Health
Oral Testimony................................................. 16
Prepared Statement............................................. 18
Alison Guernsey, Clinical Associate Professor of Law, University
of Iowa College of Law
Oral Testimony................................................. 26
Prepared Statement............................................. 28
Gretta L. Goodwin, Director, Homeland Security and Justice, U.S.
Government Accountability Office
Oral Testimony................................................. 45
Prepared Statement............................................. 47
Julie Kelly, Senior Contributor, American Greatness
Oral Testimony................................................. 56
Prepared Statement............................................. 58
Melissa Hamilton, Professor of Law and Criminal Justice,
University of Surrey, School of Law
Oral Testimony................................................. 62
Prepared Statement............................................. 64
STATEMENTS, LETTERS, MATERIALS, ARTICLES SUBMITTED
Tweets submitted by the Honorable Kathleen Landerkin, submitted
by the Honorable Andy Biggs, Ranking Member of the Subcommittee
Crime, Terrorism, and Homeland Security from the State of
Arizona for the record......................................... 76
An article entitled, ``Federal judge finds DC jail warden in
contempt, demands DOJ civil rights probe of Jan. 6 detainees,''
Fox News, submitted by the Honorable W. Gregory Steube, a
Member of the Subcommittee on Crime, Terrorism, and Homeland
Security from the State of Florida for the record.............. 86
Items submitted by the Honorable Cori Bush, Vice Chair of the
Subcommittee on Crime, Terrorism, and Homeland Security from
the State of Missouri for the record
A letter from Members of Congress to the Honorable Michael
Carvajal, Director of the Federal Bureau of Prisons.......... 102
A letter from Wendy Hechtman................................... 108
A letter from Dianthe Martinez Brooks.......................... 114
Items submitted by the Honorable Thomas Massie, a Member of the
Subcommittee on Crime, Terrorism, and Homeland Security from
the State of Kentucky for the record
A report entitled, ``COVID-19 Cases and Hospitalizations by
COVID-19 Vaccination Status and Previous COVID-19 Diagnosis--
California and New York, May-November 2021,'' Centers for
Disease Control and Prevention, Morbidity and Mortality
Weekly Report (MMWR)......................................... 120
An article etitled, ``Prior COVID infection more protective
than vaccination during Delta surge--U.S. study,'' Reuters... 127
Materials submitted by the Honorable Sheila Jackson Lee, Chair of
the Subcommittee on Crime, Terrorism, and Homeland Security
from the State of Texas for the record
An article entitled, ``As COVID Cases Spike, Federal Bureau Of
Prisons Is Not Releasing Eligible Inmates,'' Forbes.......... 140
An article entitled, ``Racial Equity and Criminal Justice Risk
Assessment,'' Urban Institute, Justice Policy Center......... 144
A letter from Colin G. Prince, Chief Appellate Attorney,
Federal Defenders of Eastern Washington and Northern Idaho... 158
An article entitled, ``Opinion: This is an Unmistakable Win for
Incarcerated People,'' CNN................................... 161
APPENDIX
A letter from Bruce C. Harris, Vice President, Federal
Government Affairs, Walmart, submitted by the Honorable Steve
Cohen, a Member of the Subcommittee on Crime, Terrorism, and
Homeland Security from the State of Tennessee for the record. 166
THE FIRST STEP ACT, THE PANDEMIC, AND
COMPASSIONATE RELEASE: WHAT ARE THE
NEXT STEPS FOR THE FEDERAL BUREAU
OF PRISONS?
----------
Friday, January 21, 2022
House of Representatives
Subcommittee on Crime, Terrorism, and Homeland Security
Committee on the Judiciary
Washington, DC
The Subcommittee met, pursuant to call, at 10:00 a.m., via
Zoom, Hon. Sheila Jackson Lee [Chair of the Subcommittee]
presiding.
Members present: Representatives Nadler, Jackson Lee,
Demings, Bass, McBath, Dean, Scanlon, Bush, Cicilline, Escobar,
Cohen, Jordan, Biggs, Chabot, Gohmert, Steube, Massie,
Fitzgerald, and Owens.
Staff present: John Doty, Senior Advisor and Deputy Staff
Director; Moh Sharma, Director of Member Services and Outreach
& Policy Advisor; Cierra Fontenot, Chief Clerk; John Williams,
Parliamentarian and Senior Counsel; Merrick Nelson, Digital
Director; Joe Graupensperger, Chief Counsel for Crime; Mauri
Gray, Deputy Chief Counsel for Crime; Natalie Knight, Counsel
for Crime; Nicole Banister, Counsel for Crime; Veronica Eligan,
Professional Staff Member/Legislative Aide for Crime; Jason
Cervenak, Minority Chief Counsel for Crime; Ken David, Minority
Counsel; Andrea Woodard, Minority Professional Staff Member;
Kiley Bidelman, Minority Clerk; and Carter Robertson, Minority
USSS Detailee.
Ms. Jackson Lee. The Subcommittee will come to order.
Without objection, the Chair is authorized to declare recesses
of the Committee at any time.
Good morning and welcome to today's hearing on The First
Step Act, The Pandemic, and Compassionate Release: What Are the
Next Steps for the Federal Bureau of Prisons?
I would like to remind Members that we have established an
email address and distribution list to circulate exhibits,
motions, or other written materials that Members might want to
offer as part of our hearing today. If you would like to submit
materials, please send them to the email address that has been
previously distributed to your offices and we will circulate
the materials to Members and staff as quickly as we can.
I would also like to ask all Members to please mute your
microphones when you are not speaking. This will help prevent
feedback and other technical issues. You may unmute yourself
any time to seek recognition.
I now will recognize myself for an opening statement, but
before I do that, one of our colleagues on the Full Committee,
Mr. McClintock, has suffered a terrible loss over the holidays,
the loss of his wife, and I want to offer my deepest sympathy
to him and his family and to all of you who work with him, all
of us who work with him every day.
We are here today to discuss several topics. We are here to
focus on the great concern including the Bureau of Prisons'
implementation of The First Step Act as so many Members on this
Committee worked very hard, including Hakeem Jeffries, Chair of
the Democratic Caucus, working across the aisle as we did on
that very important initiative, its use of compassionate
release, or the lack thereof, and its response to the COVID-19
pandemic.
In 2018, we passed a landmark piece of legislation, The
First Step Act and aimed at transformational sentencing and
prison reform at the federal level. It is an exceptional piece
of legislation, and we must maximize its potential. Because we
are here primarily to talk about the next steps for the Bureau
of Prisons, I will focus on The First Step Act's legislation
and its commitment to prison reform, which among other
mandates, required BOP to create and use a risk and needs
assessment tool to categorize federal prisoners as minimum,
low, medium, or high risk to recidivate.
Based on the resulting assessment, federal prisoners can
earn time credits to reduce their sentences which can mean
early release to a halfway house, home confinement, or early
release to supervised release, all based upon the ability to
rehabilitate and contribute to society.
Although this Subcommittee has previously held two hearings
that discuss the risk and needs assessment tools, now known as
PATTERN, questions remain regarding the efficacy, validation,
and implementation of the tools.
First, we previously learned that PATTERN relies on dynamic
and static factors, on factors which can never change such as
criminal history and the community where a prisoner lived,
before they were arrested. Knowing that communities of color
are over policed, reliance on static factors could result in
biases against people of color being baked into the application
tool, as BOP adjusted the weight these factors are given in the
assessment or otherwise accounted for the presence of this
bias.
I would venture to say that many of us on this Committee
this morning may have known someone who, as we were growing up,
we might have said they are in trouble all the time, but yet,
we know them now as a contributing family man or woman, as a
contributing citizen of the United States and as a loving
person of their community. We know that rehabilitation can
work.
Second, as I understand that PATTERN may produce racially-
disparate results in that the tool tends to over predict
recidivism in people of color and under predict recidivism in
others, as BOP adjusted the tool to account for over prediction
and under prediction.
Third, based on DOJ's 2021 review and revitalization of The
First Step Act, risk assessment to Version 1.3 of PATTERN,
which has not been approved yet by DOJ, addresses errors in the
version that is currently being used by BOP. What does this
mean for prisoners whose risk is being determined now for what
is arguably a flawed tool of assessment?
Last, it does not appear that BOP has made a good-faith
effort to develop a needs assessment tool. BOP officials
continue to use the same tools they have used for years such as
a pre-sentence investigation report, a document that is
prepared solely by U.S. probation and pre-trial service's
officers for sentencing purposes.
The Independent Review Committee pursuant to The First Step
Act persists in the development of the risk and assessment
needs tool, identified problems of BOP's approach to needs
assessment in their report two years ago as BOP addressed the
concern raised by the IRC. Does BOP plan to develop a needs
assessment tool that goes further than the status quo?
If The First Step Act is to be successful, we have a duty
to make sure that the risk and needs assessment tool will
produce reliable and unbiased results. We want to work with
BOP, as Members of Congress, this Committee, the Full
Committee, to ensure what is best for the safety and security
of America and, of course, those who are incarcerated within
the walls of BOP.
I hope our panel can help us better understand the issues
that remain in validating and developing the tool and offer
suggestions to how we can make sure it works. In issuing a Rule
last week concerning The First Step Act's earned time credit
system, I was very pleased to see that DOJ heard the outcry of
advocates, prisons, family Members, and several of the
Subcommittee's Members, including Mr. Jeffries, in closing and
choosing to do away with the proposed restrictive definition of
a day of participation in calculating how prisoners would earn
time credit.
As a result of that simple clarification, thousands of
prisoners should be released in the coming days and weeks which
will reduce the number of prisoners in custody and reduce the
risk of further spreading COVID-19 in the BOP facilities which
at this time is raging and ravaging both those who are working
there, as well as those who are incarcerated.
Let me be very clear. This clarification does not pretend
to release those who would be unsafe in the community. You
still have to go through the normal processes, but it will give
greater response to those who are working hard to rehabilitate
inside the prison.
To respond to the crisis of the impact of the pandemic on
federal prisons, we included in The CARES Act an additional
mechanism to allow BOP to release prisoners to home
confinement, reduce the prison population, and reduce the
number of COVID infections among prisons and staff. Although
using overly restrictive criteria, BOP released thousands of
prisoners under The CARES Act who reconnected with family,
found employment, and have not re-offended. I am grateful for
DOJ for reversing the past Administration's merciless opinion
in deciding that most of those released will not have to return
to custody when the pandemic ends. Yet, BOP still continues to
stumble over those who are legitimately able to take advantage
of the compassionate release and still are holding individuals,
taxing their family, those who have committed nonviolence
crimes, and who are sick. Many of those who are sick in the
face of the COVID-19 breakout are still facing the lack of
review and assessment of their eligibility for compassionate
release.
While BOP's ability to release prisoners was expanded under
The CARES Act, BOP has long possessed the statutory authority
through a request to provide early release of prisoners through
compassionate release. Even in the early stages, they were
counting those who were already being released to bolster up
their numbers of those being released under COVID. Yet, even
during the pandemic as thousands of prisoners testified
positive for COVID-19, and others died, BOP failed to
effectively utilize its authority. What seems to be divine
foresight, we included a provision in The First Step Act that
authorizes prisoners to request compassionate release
themselves after meeting certain criteria. That seems to be
receiving limited response.
According to the Sentencing Commission, the first year of
the pandemic, 96 percent of motions decided through December
31, 2020, that were granted compassionate release were filed by
the prisoner. Even as the pandemic worsened, that percentage
remains the same. The Sentencing Commission released a more
detailed report on compassionate release in September of last
year that showed that just nine percent of motions granted were
filed by the BOP Director.
COVID-19 continues to run rampant throughout BOP
facilities. On January 13th, there were 6,043 Federal prisoners
and 939 BOP staff who tested positive for COVID-19. On January
18th, there were 9,194 prisoners and 1,150 staff who tested
positive for COVID-19 and 98 facilities at Level 3 of the
modified operational level. From the time the pandemic began
until now, BOP reports that 279 prisoners have died due to
COVID, and 7 staff Members have died.
I am certain that our Witnesses will let us know whether
these numbers are correct. I hope they will also provide
solutions for how they think we can reduce infection and
protect prisoners and staff within BOP. BOP has operated under
staff shortages for many years and the pandemic has only
exacerbated staffing problems. That is something that I want
this Committee going forward to focus on in assisting BOP and
assisting of their staffing capabilities to be staffed up.
The death of Jeffrey Epstein was in BOP custody almost 2\1/
2\ years ago, attributed in part to staffing shortages. I look
forward to the pending report from the Inspector General on the
circumstances surrounding his death. I expect that the report
will include recommendations to make all efforts to staff up
throughout the Bureau.
It is my hope that this hearing that we will take
additional steps to ensure BOP carries out its mission to
confine offenders in prison and community-based facilities that
are safe, humane, cost efficient, and appropriately secure and
that provide work and other self-improvement opportunity to
assist offenders in becoming law-abiding citizens.
It is now my pleasure to recognize the distinguished
gentleman from Arizona, the Ranking Member of this Committee
for his opening statement.
Mr. Biggs, you are now recognized.
Mr. Biggs. Thank you, Madam Chair, and I particularly thank
you for calling attention and reminding us of the grieving of
our colleague and friend, Mr. McClintock of California, whose
tragic loss of his wife came unexpectedly over the holidays and
appreciate your thoughtfulness.
This hearing today, we are focused largely on post-
conviction sentencing and confinement. I welcome that
discussion and there will be discussions about compassionate
release, all for post-convicted individuals.
There is also a concern regarding pre-trial detention and
conditions in which defendants are held. Our constitutional
rights, are they being protected? Is everyone receiving the due
process regardless for the charge that they are pending trial,
they are waiting conclusion, or the outcome of that case?
On January 4th, I sent Chair Nadler a letter requesting a
hearing on the treatment of the January 6th defendants while in
custody at the D.C. Jail. I have yet to receive a response from
the Chair.
It is my position that the Judiciary Committee must
investigate the horrific treatment of the January 6th
defendants. Individuals being held at the D.C. Jail are being
punished for exercising constitutional rights while in custody.
For instance, them being held in solitary confinement for
meeting with their attorneys. They are being forced to spend up
to 23 hours a day in solitary confinement. This has received,
actually, a bipartisan rebuke. Senator Elizabeth Warren told
The Washington Examiner, and I quote ``I do not believe in
solitary confinement for extended periods of time for anyone.''
The ACLU has objected to the treatment of the January 6th
defendants. Tammie Gregg, Deputy Director of the ACLU National
Prison Project, told The Washington Examiner ``Prolonged
solitary confinement is torture and certainly should not be
used as a punitive tool to intimidate or extract cooperation.''
However, it does not start or stop with solitary
confinement. I appreciate the Chair's comments about healthcare
in the prison system and what we have seen is that individuals
that need healthcare in the D.C. prison have been defined that
healthcare and I will mention that a little bit more in a
minute.
What is interesting about this pre-trial detention is that
most of the individuals that are in this situation have had no
contact with the criminal justice system previously. They don't
pose a flight risk. They meet all Federal guidelines for pre-
trial release but have been denied that release. They have been
forced into rooms with human feces on the walls. One defendant
was subjected to a strip search after meeting with his lawyer.
When he asked for ``literature that authorized the strip
search,'' the officers refused to answer. The officers then
handcuffed that individual and put him a dark room with a chair
and maced him.
There are reports of defendants being denied medical care
including one defendant who was denied treatment for non-
Hodgkin's lymphoma. The treatment is so horrific that a Federal
judge asked the Department of Justice to investigate the D.C.
Jail for civil rights abuses saying ``It is clear to me the
civil rights of the defendant were violated by the D.C.
Department of Corrections.''
The conditions in the jail were so horrendous that U.S.
Marshals removed inmates from the jail, and they were quoted as
stating that the facility did ``not meet the minimum standards
of confinement as prescribed in the federal performance-based
detention standards.''
This is all being done to people who are innocent in the
eyes of the law. They have yet to be convicted of a crime, but
they are being treated as if they had been convicted of a
crime. In fact, they are being treated worse than anybody who
has been convicted of a crime should be treated.
In America, we still adhere to the principle that you are
innocent until proven guilty. Unfortunately, there have been
people who have not allowed these injustices to go unreported
and we have one of those individuals with us here today. Julie
Kelly has brought to light the horrific treatment of the
January 6th defendants by the D.C. Jail.
I just highlight something else that the Chair said, and I
appreciate her comments about compassionate release. Her
comments focusing on compassionate release were directed to
folks who have been convicted of a crime. When you meet the
Federal guidelines for pretrial release, it is not
compassionate. It is not due process. It is not fair or
equitable to be confined in a prison, in a jail with the
conditions that many of these January 6th defendants await the
outcomes of their cases.
I am glad that we have our Witnesses here today. I am glad
we have an opportunity to put these issues on the table. Madam
Chair, I thank you for the time, and I yield back to you.
Ms. Jackson Lee. Mr. Ranking Member, I thank you for
putting these important issues on the table. Thank you.
Now, it is my privilege, the Chair now recognizes the Chair
of the Full Committee, the gentleman from New York, Mr. Nadler,
for his opening statement.
Chair Nadler. Thank you, Madam Chair, for holding this
important hearing to discuss implementation of The First Step
Act, and on-going efforts by the Bureau of Prisons to respond
to the COVID-19 pandemic including its use of compassionate
release.
Let me join in an expression of condolences to our
colleague, Mr. McClintock.
Three years ago, we passed the ground-breaking piece of
bipartisan legislation, The First Step Act of 2018, which truly
was a step forward in our efforts to reform our criminal
justice system. That law reforms in modest, but important ways,
Federal criminal sentencing and various aspects of the Federal
court system.
These critical provisions are intended to improve Federal
prison conditions, reduce the Federal prison population, and
reduce recidivism among offenders released from BOP custody
through evidence-based practices.
Now, although COVID-19 certainly contributed to the delays,
we should recognize that BOP was slow to implement this
legislation long before the first inmate tested positive for
COVID. I am pleased, however, that BOP and DOJ have now taken
significant steps through the implementation of PATTERN, the
risk and needs assessment tool used to determine inmates'
eligibility to participate in recidivism-reducing programming
which can help inmates earn credits toward early release.
It has also completed an assessment of BOP inmates under
this tool and a determination of how these credits will be
calculated. The Biden Administration has also made important
improvements to the implementation of The First Step Act in the
past year. For example, just a few days ago, the Administration
significantly revised how it will calculate the invaluable
earned time credits using a much more reasonable and less
restrictive formula than originally proposed. This new policy
has the potential to lead through the release of thousands of
inmates who are unlikely to re-offend.
While I am heartened by this decision, many questions
remain about whether the PATTERN tool, which shows so much
power to determine an inmate's eligibility to receive earned
time credits, has been sufficiently validated by independent
experts. I look forward to hearing from our Witnesses on this
important question.
I also look forward to examining the BOP's troubling
response to the COVID-19 pandemic and its inability to protect
inmates and staff adequately. Since the pandemic began, more
than 50,000 BOP inmates have been infected with COVID-19. This
month, in just a five-day span, more than 3,000 more inmates in
our Federal prison system tested positive and two more inmates
died from complications due to COVID bringing the total number
of inmate deaths from the virus to 279. The number of staff
Members to die of COVID-19 remains at seven, although that
seven is seven too many. These numbers are quite frightening,
and we must do more to protect individuals in custody,
individuals who are placed in our, particularly those of high
risk to several COVID-19 complications, even if that means
releasing them. Nobody deserves to die from this disease, and
we have a duty to ensure basic protections for those in our
custody.
Unfortunately, in the years since the pandemic began, BOP
has failed to make sufficient use of the authority granted to
it under the CARES Act to place certain prisoners in home
confinement earlier than previously permitted by statute,
leaving many inmates unnecessarily at risk of illness or death.
After the Trump Administration ordered that people released
under the CARES Act will have to return to custody when the
spread of COVID-19 has abated, I was pleased to see that
Attorney General Garland wisely reversed this policy. Most of
these individuals will now be allowed to remain out of custody
and continue with the work of rebuilding their lives. This is a
significant and appropriate change and I commend the Biden
Administration for making this important move.
Long before the pandemic, the CARES Act under The First
Step Act, BOP already had the power to petition for the release
of any Federal inmate if extraordinary and compelling reasons
warrant or if an inmate met several criteria. Despite this
broad authority called compassionate release, BOP has routinely
chosen not to seek compassionate release of inmates. This is a
wasted opportunity to deliver justice to people of low risk of
recidivism and to the families and communities who would
benefit from their return home.
In light of the low recidivism rates among individuals
released under the CARES Act and during the pandemic, I hope
that BOP will begin to utilize compassionate release more
often. I also hope that BOP will commit to improving the
conditions at its facilities across the country. I am aware
particularly of unacceptable conditions at the Metropolitan
Detention Center in Brooklyn, conditions that long predate
COVID-19. For example, a frigid cold spell in early 2019,
detainees there had no heat or electricity, and BOP officials
had no plan in place to assure inmate safety in case of a power
outage and had no sense of urgency whatsoever to address the
problem.
I, along with other Members, including Mr. Jeffries and Ms.
Velazquez, toured the facility to see firsthand the terrible
conditions. At the onset of the pandemic, we continue to get
reports about inadequate treatment of those detained at the
MDC. We must do better. That is why I am pleased that Dr.
Venters and Dr. Goodwin are here today to discuss their
observations while conducting on-site inspections of BOP
facilities. I expect that you both will have helpful
recommendations for what we can do moving forward to improve
the conditions at BOP facilities. To help inmates pass to
treatment and programming and to protect the most vulnerable in
custody.
We are also fortunate to have other distinguished guests
here to speak with us about some of the critical issues I have
discussed, and I look forward to hearing from each of you.
Madam Chair, before I yield back, I would like to take a
brief moment of personal privilege to recognize Joe
Graupensperger for his long and valued service at the House
Judiciary Committee. Joe came to the Committee in 2009 to work
on crime policy for then Chair John Conyers, Jr. He is today
the Chief Counsel of our Subcommittee on Crime, Terrorism, and
Homeland Security. In that span of service, Joe has drafted
dozens of laws, run hundreds of hearings like this one, and
without question, helped to improve the lives of millions of
Americans.
In particular, we should observe that Joe has played a role
in every major criminal justice reform effort that has been
signed into law in the past decade and a half including the
Fair Sentencing Act and The First Step Act, as well as laws to
address the rape-kit backlog, reform surveillance practice, and
establish rights for survivors of sexual assault, among many
others. In fact, under Joe's leadership, despite a divided
Congress and a Republican President, more than a dozen bills
under the Crime Subcommittee jurisdiction was signed into law
last Congress alone. Several others have been signed into law
this Congress as well.
Today is Joe's last hearing as Chief Counsel. I want to
congratulate him on his recent engagement and wish him well in
his upcoming move to Texas. We will miss his leadership, his
friendship, and his steadfast dedication to justice for all.
Simply put, our country is better off because of Joe's work as
a public servant.
Thank you, Joe, for your service to the Committee and best
of luck with this exciting next chapter. With that, I yield
back.
Ms. Jackson Lee. Mr. Chair, thank you so very much for your
statement, but also for your kind words. Of course, I would be
remiss if I also did not acknowledge the very invaluable and
long standing, knowledgeable service of Chief Counsel Joe
Graupen-sperger. He has given to the Judiciary Committee and,
of course, to this Subcommittee years of experience having come
from the Department of Justice.
If I might say his calm demeanor was a guiding pulse in
making sure that the Crime Subcommittee and his service to then
Chair and Ranking Member John Conyers, Jr., and of course, to
you, Mr. Chair, was steady and constructive and helpful.
You are right. He has been at the cornerstone of so much
legislation that has helped millions and millions of Americans.
I can think of legislation reducing gun violence, protecting
the health and safety of those who are incarcerated, ensuring
the need for access to counsel, and dealing with reducing
domestic terrorism as well. This has been really a focus of
this Committee and he has been at the center point of dealing
with homeland security and reform of outdated drug laws. He has
a passion for the law and a passion for service to the country
and to this Committee and this Congress.
I, too, would like to restrain him, but that I will not do
because he is leaving because of a joyful moment in his life
and that is an engagement to his wonderful now fiance and of
course, the great opportunities for both of them.
I want him to know that we are excited about his legacy and
what he has done for this country through this Committee, but
we are even more excited about his future. I want to
congratulate you. I am glad we were able to have a Committee
hearing that you had such a handprint on so that we could say
congratulations to you. We will miss you, but we bid you adieu,
my friend, and wish you the very best.
I want to acknowledge the Ranking Member, Mr. Jordan. I
thank him very much for his presence here today.
It is now my pleasure to introduce today's Witnesses and
again to thank them for their presence here and again to
acknowledge the importance of their testimony.
Gwen Levi was born and raised in Baltimore. As a mother of
six, Levi lived a double life, serving as a PTA President and
Model Cities representative, while also distributing cocaine
and heroin. She is a cancer survivor, who in the 17th year of
her 33-year prison sentence, was released to home confinement
under the CARES Act, then returned to custody 13 months later
due to a missed call from a halfway house. In July 2021, she
was granted compassionate release under The First Step Act
which resulted in a time served sentence.
Dr. Homer Venters is a court-appointed prison and jail
monitor and Adjunct Professor of New York University College of
Global Public Health. He is a physician and epidemiologist,
working at the intersection of incarceration, health, and human
rights, specializing in prison health. He served on the Biden-
Harris COVID-19 Health Equity Task Force and is a former Chief
Medical Officer of Correctional Health Services at New York
City Health and Hospital Corporation and author of Life and
Death in Rikers Island. Dr. Venters received his medical
doctorate from the University of Illinois-Urbana.
Alison Guernsey is a Clinical Professor at the University
of Iowa College of Law where she oversees the Federal Criminal
Defense Clinic. She has also done extensive work on
compassionate release, BOP's handling of COVID-19 and tracked
deaths in BOP custody attributable to COVID-19. Ms. Guernsey is
formerly an Assistant Federal Defender who served the United
States District Court for the Eastern Districts of Washington
and Idaho. She received her law degree from the University of
Iowa College of Law where she was the Editor-in-Chief of the
Iowa Law Review.
Gretta Goodwin, Ph.D., is a Director of the Homeland
Security and Justice Team at the U.S. Government Accountability
Office where she leads GAO's work on justice and law
enforcement issues. Her portfolio includes the Federal prison
system, Federal law enforcement oversight and training, civil
liberties and civil rights, vulnerable populations, and the
Federal judiciary. During her 20-plus years at GAO, she also
worked on issues related to Social Security reform, disability,
worker protection, K-12, and higher education. Dr. Goodwin
received her Ph.D. and Master's degree in Economics from the
University of Nebraska at Lincoln and a Bachelor degree in
Economics from the University of Houston.
Julie Kelly is a political commentator and senior
contributor at American Greatness. Ms. Kelly covers political
and policy issues. She is an author and former political
consultant for office holders and candidates in suburban
Chicago. Her past work can be found at the Federalist and
National Review, as well as guest editorials in the Wall Street
Journal, Roll Call, and The Hill. Ms. Kelly is a 1990 graduate
of Eastern Illinois University. She lives in Orland Park,
Illinois with her husband and her two daughters.
Melissa Hamilton, Ph.D., is a Senior Lecturer of Law in
Criminal Justice at the University of Surrey, School of Law in
the United Kingdom, who previously served as Visiting Criminal
Law Fellow and Visiting Assistant Professor of Law at the
University of Houston Law Center. Dr. Hamilton is a former
police officer, former corrections officer, and former judicial
clerk who is a member of the Task Force on Women and Community
Corrections with the International Corrections and Prison
Association. She previously served on the Risk Assessment Task
Force with the National Association of Criminal Defense
Lawyers. She received her Ph.D. in Criminology from the
University of Texas at Austin and her J.D. from the University
of Texas School of Law.
I welcome all of you, welcome all our distinguished
Witnesses. We are very grateful to them for their
participation. It does not go unnoticed two Witnesses'
connection to Texas and the University of Houston. It brings a
great smile and of course, that means I have a smile for all
the Witnesses.
I will begin by swearing in our Witnesses. I ask our
Witnesses to turn on their audio and make sure that I can see
your faces and your raised hands while I administer the oath.
Raised hands, raised right hands. Do you swear or affirm under
penalty of perjury that the testimony you are about to give is
true and correct to the best of your knowledge, information,
and belief so help you God? Witnesses need to show your
affirmative.
Thank you so very much. Please note that your Witnesses
statements will be entered into the record in their entirety.
Accordingly, I ask that you summarize your testimony in five
minutes. To help you stay within that time frame, there is a
time light on your screen. When the light switches from green
to yellow, you have one minute to conclude your testimony. When
the light turns red, it signals that your five minutes have
expired.
It is now a pleasure to recognize Ms. Levi for five
minutes. Ms. Levi, you are recognized. Please unmute and begin
your testimony. Thank you very much.
STATEMENT OF GWEN LEVI
Ms. Levi. Good morning, Chair Jackson Lee, Ranking Member
Biggs, and the Members of the Subcommittee. My name is Gwen
Levi and I live in Baltimore, Maryland.
In March 2020, when the first wave of the COVID-19 pandemic
hit, I was 16 years into my sentence for a nonviolent drug
offense. I was 74 years old and had just survived a bout with
lung cancer. Like so many other people in prison at the time, I
was worried about the deadly virus spreading throughout the
prison. There was no vaccine yet and being in prison made
physical distancing and proper hygiene almost impossible.
Fortunately, Congress did pass the CARES Act in March. The
law included a provision that allowed the Federal Bureau of
Prisons to send people to home confinement for long periods of
time to save lives and to limit the spread of COVID-19.
Attorney General Barr established a strict criterion for home
confinement limiting it to people who served more than half
their sentence, had a clean disciplinary record for the past
year, had no history of violence, and had a minimum score on
the PATTERN risk assessment, and were among those considered
high risk for suffering complications from COVID-19.
I met all those criteria, and I was approved for home
confinement the day before my 75th birthday. It was a blessing
to be able to return home to my family and my 94-year-old
surviving mother which my incarceration was especially
difficult for her.
When I left prison, I was sitting with an ankle monitor
that tracked my every move. I could not leave my house to go
anywhere, even the grocery store without permission from my
case manager at the halfway house. Doing a home confinement is
much better than prison, but it is still worlds away from being
free.
When I got home, I began advocating for criminal justice
reform, especially women, people of color, the elderly, and
those without a lot of money, people just like me. I wanted to
make a positive contribution to my community. I signed up for a
full session computer class administered by the Maryland
Justice Project which was being held in a building owned by the
Baltimore Police Department. I didn't know the building was
designed to prevent GPS monitoring as a security measure so the
ankle monitor I was wearing lost its signal.
While I was in the second class on June 12th, my phone was
turned off. Apparently, the halfway house tried calling me for
the radio pinged my ankle bracelet. I didn't hear either
device. That afternoon, I was told I had committed an escape
which the Bureau defined as being out of touch for four hours.
I was told to pack a bag and return to the halfway house. While
at the halfway house, I was questioned and told to sign a
statement so that I could go home. My attorney asked to be
present at that hearing when I was being questioned, but they
refused her request. The day after I signed the statement, I
wasn't sent home. Instead, the United States Marshals came to
the halfway house and arrested me. They put me in the D.C. Jail
on June 16th telling my attorney that they would expedite my
return to a Federal corrections facility to complete my
sentence.
As awful as that was, I was luckier than most. My family,
though devastated, they sprang into action, so did the
organizations I had been working with. The media picked up the
story and it struck a nerve with the public. Organizations like
the National Council of Formerly Incarcerated Women and Girls,
FAM, organizations like Maryland Justice Project, these
organizations would lobby to get me home. People across the
country were outraged that during a pandemic, the BOP sent me,
a 75-year-old cancer survivor to jail because I attended a
computer class in the hope of finding a paying job.
At that point, my request for a sentence reduction through
compassionate release had been sitting in the court for more
than a year. The Justice Department opposed my motion, just as
they did nearly every motion for compassionate release that was
filed. I was lucky this time. Thanks to the overwhelming
support I received, my judge granted me compassionate release
on July 6, 2021, reducing my sentence to time served. My long
ordeal was almost finally over.
My work to help others, however, goes on. I would like to
share with the Subcommittee that there are things the
Administration and Congress can do right now to help those in
my position, people who are trying their best to make amends.
First, President Biden could commute the sentences of
everyone under CARES Act confinement to home confinement so
that they can move forward with their lives.
Second, as the latest COVID-19 variant makes its way
through the prisons, the BOP and the Justice Department should
use their authority to bring compassionate release motions on
behalf of at-risk people.
Ms. Jackson Lee. Ms. Levi, your time is expired. If you
could wrap up, I will let you finish. If you could wrap up.
Thank you.
Ms. Levi. Finally, we would like Congress to pass
legislation establishing an Oversight Committee so that these
things that we are addressing today at this Subcommittee
hearing can be addressed.
I thank you for allowing me to testify this morning and I
look forward to answering your questions.
[The statement of Ms. Levi follows:]
[GRAPHICS NOT AVAILABLE IN TIFF FORMAT]
Ms. Jackson Lee. Thank you so very much.
Dr. Venters, you are now recognized for five minutes.
STATEMENT OF HOMER VENTERS
Dr. Venters. Good morning, Chair Jackson Lee, Chair Nadler,
Ranking Members Biggs and Jordan, and the Members of the
Committee. Thank you for the opportunity to present this
testimony.
My name is Homer Venters. I am a physician and
epidemiologist who has spent the past two years performing over
40 inspections of jails, prisons, and immigration detention
facilities across the country to assess the adequacy of COVID-
19 responses including Bureau of Prisons facilities.
The BOP is at a crucial juncture regarding healthcare for
detained people and I fear that many critical lessons from the
COVID-19 pandemic may be ignored or left unaddressed. My
greatest area of concern is that pre-existing deficiencies in
the health services provided to people in BOP custody which
contributed to the spread and lethality of COVID-19 remain
unaddressed. We must replicate the strengths and address the
deficiencies in how the agency has responded.
My investigations have revealed a disturbing lack of access
to care when a new medical problem is encountered. In the first
BOP facility I inspected, the Metropolitan Detention Center in
Brooklyn, New York, it quickly became apparent that not only
were reports of COVID-19 symptoms being ignored, but that the
sick call requests people filled out were being destroyed,
leaving no trace of their original reports. Systemic issues
like this meant that when COVID-19 arrived, incarcerated people
relied on a broken system of sick call to seek care.
Chronic care and behavioral health are two more areas where
preexisting weaknesses in the BOP health services worsened the
morbidity and mortality of COVID-19. One example is the take it
or leave it approach to COVID-19 vaccination in BOP's large
scale vaccination events. This approach may suffice for some,
but for patients on multiple medications, with complicated
health histories, and many questions, it simply does not
suffice.
The BOP needs to improve these areas of care, but the
principles laid out in then Attorney General Barr's memo from
early in the pandemic stand today. There is a compelling and
unrealized rationale for release of high-risk patients who pose
minimal public safety risks. This approach is even more
important now to consider during the omicron outbreaks because
of the tremendous lack of staffing inside facilities.
There is one critical task that remains unaddressed
regarding the BOP and COVID-19. We must have an independent
assessment of all COVID-19 deaths including those that occurred
in private facilities. In my work, I have encountered
significant strengths and deficiencies in the BOP COVID-19
responses. There is no doubt that many of these strengths saved
lives and conversely, that many of these deficiencies led to
preventable illness and death.
To date, there has not been any systemic and independent
review of deaths from COVID-19 in BOP custody, although a
recent call for exactly this type of analysis was sent to the
Inspector General of the DOJ. I strongly support this proposal,
but it highlights a more fundamental problem for the BOP, the
lack of independent assessment in how deaths are reviewed and
more broadly, the lack of meaningful oversight by a health
organization.
Every other sector of healthcare in the United States has
independent and professional health organizations reviewing the
quality of care, but in the BOP and other carceral spaces, we
leave those crucial assessments to law enforcement to review
its own provision of health care. For the BOP to improve its
overall health services and prepare for the next infectious
disease outbreak, we must have an independent assessment of
COVID-19 related deaths among people in BOP and Marshals
custody. We also must create an independent health authority to
oversee and report on all aspects of healthcare inside BOP
facilities.
The BOP faces an important choice in how they respond to
COVID-19 and work to improve their health services. In
community health settings, we do not allow a hospital or a
clinic to be the arbiter of how well they were doing. Instead,
we rely on external agencies and authorities with health
expertise for this critical work.
Currently, the BOP is left to make its own assessments
about the quality and scope of its healthcare and only sporadic
investigations by the Inspector General of the Department of
Justice provide alternative viewpoints. This is wholly
insufficient and leaves incarcerated people at a systemic
disadvantage because the organizations and structures that
measure and promote health for the rest of the nation--for the
rest of us--are excluded from the care people receive in the
BOP.
The BOP has an opportunity to start addressing this unequal
system of care and it must start with an honest assessment of
COVID-19 deaths and partnership with the CDC and other true
health organizations.
Thank you for the opportunity to provide this testimony. I
am happy to take any questions.
[The statement of Dr. Venters follows:]
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Ms. Jackson Lee. Dr. Venters, thank you so very much for
your testimony.
Now I would like to recognize Ms. Guernsey for five
minutes. Thank you.
STATEMENT OF ALISON GUERNSEY
Ms. Guernsey. Chair, Subcommittee Chair and Ranking
Members, thank you for inviting me to testify here today for
the more than 153,000 people currently incarcerated in federal
facilities. The topics that the Committee is going to address
today are literally a matter of life and death.
My name is Alison Guernsey, and I am a Clinical Associate
Professor at the University of Iowa College of Law where I
direct the Federal Criminal Defense Clinic. My students and I
represent indigent people who have been charged with Federal
crimes or who are seeking sentencing reductions in various
Federal Districts and Circuit Courts across the country. This
includes motions for compassionate release and advocacy under
the CARES Act.
In addition to our direct representation, however, we spent
the past 22 months attempting to monitor and track the COVID-19
related deaths and infections in the Bureau of Prisons with an
eye towards identifying the impact of the BOP's actions on the
availability and use of compassionate release. Because of the
people currently living in our prisons have been the driver
behind our work, I want to start today by highlighting their
real human toll COVID-19 has exacted.
I want to tell you about Jaime Benevides. Mr. Benevides was
a 49-year-old father and brother from Texas who died of COVID-
19 while being housed at a medical facility in Springfield,
Missouri. In March 2022, Mr. Benevides was sentenced for
marijuana trafficking to 30 months. He had long-term pre-
existing medical conditions that the CDC had listed as
increasing his risk of severe COVID and even death. Not
surprisingly, in December 2020, Mr. Benevides caught COVID. He
started to get better until he didn't. In March of 2021, he was
transported to the hospital and just days later he died.
At the time of his death, Mr. Benevides had served 20
months of his 30-month sentence. From the information we know,
Mr. Benevides was a strong candidate for CARES Act home
confinement. From what we know, he could have even had a shot
at compassionate release. Although it is impossible tell from
the Bureau of Prison's publicly-available data whether he
applied for either, we know that he certainly did not get them.
Mr. Benevides is one of thousands of people across the
country in federal facilities who have caught COVID, some of
them more than once. The deaths are close to 300 that have
occurred since March 2020. As I highlight in detail my written
remarks, having spent the past 22 months monitoring the BOP
data and talking to advocates both inside and out of Federal
prison, there is serious questions about the veracity of the
BOP's infection and death data. Not only do these questions
cast doubt on the BOP's handling of the pandemic, but they have
real-world impact on the adjudication of compassionate release
motions.
First, the death rate. According to the currently available
public data from the Bureau of Prisons, as of today, there are
279 people who have died from COVID who were housed in Federal
facilities. But this number is suspect for several reasons:
First, delayed reporting; second, it doesn't include anyone who
has died in a privately managed facility with a Federal
contract; and third, it excludes people who are granted
compassionate release just in time to die free.
Second, the infection rate. The Bureau of Prisons has
admitted that its cumulative infection rate doesn't include
anyone who caught COVID and was then released from prison.
Moreover, infection rate data is only as good as its testing.
The BOP reports only one testing variable for incarcerated
people, the number of people it tests. By recording the number
of people it tests, as opposed to the number of tests
administered, the BOP is able to hide whether a low-infection
rate is due to low COVID prevalence or simply inadequate
testing. As advocates and people who are incarcerated have
reported day after day, their suspicion is the latter.
The accuracy of the BOP's data matters. Federal courts rely
on it routinely in granting compassionate release and if a
judge misjudges the COVID risk based on inaccurate data, people
that we know are medically vulnerable will be left in prison to
die. We know the Bureau of Prisons is not bridging that gap. It
has approved only 43 requests in 2020 and in the first part of
2021 only 9.
So, reduction is simple. What must we do? We should the BOP
to report accurate and verifiable data. We should require them
to do this for deaths and for infections. We should require the
BOP to comply with the mandates already articulated in The
First Step Act, that requiring them to report to this Committee
in Congress what they are doing with respect to compassionate
release procedures.
I appreciate you taking the time to focus on some of the
people who are the most vulnerable during the pandemic and I
welcome your questions.
[The statement of Ms. Guernsey follows:]
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Ms. Jackson Lee. Thank you very much, Ms. Guernsey, for
your statement.
Now, Ms. Goodwin, it is my pleasure to recognize you for
five minutes.
STATEMENT OF GRETTA L. GOODWIN
Ms. Goodwin. Chair Jackson Lee, Ranking Member Biggs, Chair
Nadler, and Ranking Member Jordan and the Members of this
Subcommittee, I am pleased to be here today to discuss the
recommendations we made to enhance BOP's COVID-19 response and
BOP's efforts to address them and our on-going work on DOJ and
BOP's implementation of certain provisions in The First Step
Act.
BOP is responsible not only for the supervision and custody
of more than 157,000 Federal inmates, but also for their
healthcare, safety, and rehabilitation. The COVID-19 pandemic
has strained congregate living facilities such as prisons which
are more vulnerable to infectious disease outbreaks. As of
yesterday, BOP attributed 279 inmate deaths and 7 staff member
deaths to COVID-19.
Our report examining BOP's COVID-19 response found that
while BOP developed an updated guidance with input from the
CDC, BOP staff reported confusion about how to implement the
guidance. We recommended that BOP routinely evaluate how it
communicates its guidance to facility staff and modify its
approach to ensure protocols are clearly communicated. BOP has
taken some actions such as surveying its staff on COVID-19
guidance. We will continue to monitor BOP's efforts to review
and assess staff feedback and to modify its COVID-19 guidance
as needed.
We also examined the process that BOP uses to identify and
share best practices and lessons learned. To do this, BOP holds
teleconferences among officials and inspects facilities.
However, we found that the agency does not capture or share
bureau-wide the lessons and best practices learned from these
efforts. We recommended that BOP develop and implement an
approach to capture and share best practices and lessons
learned, as well as ensure that its facilities are applying
this information to COVID-19 and future public health emergency
response efforts.
BOP continues to work on its approach to implementing these
recommendations and we will continue to monitor its progress.
Even as BOP has put COVID-19 protocols in place, it still has
obligations to provide inmates with programs to advance their
education and development. The First Step Act contains a number
of requirements for BOP and DOJ related to assessing inmates'
recidivism risk and the need for programs that target certain
risk factors.
DOJ has developed a risk assessment tool known as PATTERN
which is designed to predict the likelihood of recidivism for
all BOP inmates. BOP has begun to formalize and enhance its
needs assessment system.
BOP uses PATTERN risk scores, and inmates' needs
assessments to determine the type and amount of evidence-based
recidivism reduction programming that is appropriate for each
Federal inmate. Eligible inmates who successfully participate
in this programming or other productive activities may earn
time credits that will allow them to be placed in pre-release
custody or supervised release earlier than previously allowed.
The First Step Act requires GAO to review the actions BOP
and DOJ have taken to implement the risk and needs assessment
system. Our ongoing work will analyze BOP data to determine if
it is conducting risk and needs assessments with the frequency
required by law. We will also examine inmates' participation in
evidence-based recidivism reduction programming and productive
activities, and we will examine BOP's process for applying time
credits to reduce inmate sentences, and we will monitor BOP's
new Rule implementing the Federal time credit program.
Our prior work illustrates the importance of BOP
effectively communicating its COVID-19 guidance to staff and
ensuring that lessons learned from the pandemic are captured,
shared, and applied. Our ongoing work on The First Step Act
requirements is both timely and relevant in light of COVID-19.
Chair Jackson Lee, Ranking Member Biggs, Chair Nadler,
Ranking Member Jordan, and the Members of this Subcommittee,
this concludes my remarks. I am happy to answer any questions
you have.
[The statement of Ms. Goodwin follows:]
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Ms. Jackson Lee. Thank you very much, Ms. Goodwin, and
thank you for your work.
Ms. Kelly, I am very pleased to recognize you for five
minutes.
STATEMENT OF JULIE KELLY
Ms. Kelly. Thank you, Chair Jackson Lee and Ranking Member
Biggs, Chair Nadler, and Ranking Member Jordan. My name is
Julie Kelly. I am a Senior Contributor for American Greatness.
For nearly a year, I have reported on the inhumane conditions
at the D.C. Correctional Treatment Facility which has been set
aside to detain Americans charged in the Justice Department's
Capitol breach probe. The Justice Department has sought pre-
trial detention for at least 100 January 6th protesters and
right now more than 70 men are incarcerated at prisons across
the country awaiting trial. At least 37 of those men are
detained at the D.C. Correctional Treatment Facility.
It is important to underscore to the Committee and those
watching that these defendants have not been convicted of any
crime. Most have no criminal record, and some do not even face
violent charges related to their conduct on January 6th. Many
detainees don't even have a court date yet. They have been
denied bail because prosecutors insist they are a threat to
society based on their participation in the Capitol protest and
Federal judges on the D.C. District Court have consented to the
Justice Department's demands to keep them behind bars while at
the same time repeatedly delaying their trials until the middle
and end of this year.
The original rationale for keeping the January 6th
protesters separated from the general population incarcerated
at the D.C. Department of Corrections was to protect them from
more violent criminals. It appears, however, that the D.C. Jail
for January 6th protesters is more of a political prison for
Americans who protested Joe Biden's election.
Detainees at the D.C. Jail have reported numerous human
rights and constitutional violations. A detainee I spoke with
this week, an Army Reservist charged with no violence crimes,
who nonetheless has been in prison since his arrest one year
ago, confirmed the January 6th jail is under 22-hour lockdown
due to COVID. It is nearly impossible for detainees to meet
with their attorneys or access the discovery evidence against
them. Defense lawyers have complained that it takes months for
their clients to finally receive digital discovery materials
because jail officials are withholding the evidence.
The viewing of video evidence, especially any clip produced
from the roughly 14,000 hours of surveillance video captured by
Capitol security cameras on January 6th at the Justice
Department designated highly sensitive government material is
under strict rules. It is nearly impossible for detainees to
watch any relevant video concealed under protective orders.
The situation is so egregious that the D.C. District Court
banned the committee-to-committee to attempt to resolve the
problem between defense attorneys and detainees accessing their
evidence. Judge Randolph Moss blasted the D.C. Jail for
withholding evidence from an accused defendant. ``I can't allow
some to stay in prison for this long without access for
material,'' Moss said back in July, calling the delays utterly
unacceptable and not consistent with due process. Six months
later, the situation does not appear to be improving.
Living conditions are also utterly unacceptable. Detainees
do not have access to religious service, a law library, or even
personal hygiene services. They have not seen their family in
nearly a year. Detainees have reported instances of racially
and politically motivated verbal abuse. I am told the only
newspaper distributed within the D.C. Jail for January 6th
defendants is a paper published by the Nation of Islam.
Just this week, Marvin Bickham, a Federal Detention Monitor
for the U.S. Marshals Service detailed several issues at the
D.C. Jail for January 6th detainees such as the presence of
mold and maintenance of CPAP machines. They have been reported
that detainees who refuse to get the COVID shot are denied
shaving gear and haircuts. Detainees who refuse the vaccine
cannot have personal visits. Regardless of vaccine status,
January 6th detainees are only allowed out two hours a day for
recreation time which means now they are spending 22 hours
alone in a freezing, what I am told freezing, eight by ten
cell.
Again, these men have been convicted of no crime. They
[inaudible] from detainees' lawyers and judges about lack of
access to discovery material. Bickham wrote in his report, they
are only allowed access to computers to review electronic
discovery for only 14 days and there are not enough computers
to go around. This is a clear violation of the 6th Amendment,
yet Bickham still concluded that the conditions in the D.C.
Jail for January 6th detainees are appropriate and consistent
with Federal prisoner standards.
I see my time is up. Thank you so much for inviting me here
today. I look forward to answering any questions.
[The statement of Ms. Kelly follows:]
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Ms. Jackson Lee. Ms. Kelly, we thank you. Ms. Hamilton, I
now recognize you for five minutes. You are recognized.
STATEMENT OF MELISSA HAMILTON
Ms. Hamilton. Thank you, esteemed Committee, for the
opportunity to provide information about the current State of
PATTERN which is the name of the risk-assessment tool developed
under the auspices of The First Step Act.
I will make six points. Transparency regarding PATTERN has
waxed and waned. Notably, the most recent NIJ review and
revalidation report of December 2021 provides a healthy amount
of information. I refer to it here as the NIJ Report.
The second point is that the version of PATTERN being used
now for purposes of The First Step Act implementation is
fundamentally flawed. The NIJ report reveals, for example, that
two thirds of the risk factors were incorrectly weighted. Most
factors were incorrectly defined and there were additional
scoring errors. According to the NIJ report, due to these
problems overall 11 percent of BOP population is placed in the
wrong risk level.
Third, the NIJ report offers a new version of PATTERN which
corrects these errors and makes significant modifications
otherwise. Nonetheless, this updated version will not be used
in practice unless and until it is formally approved by the
Attorney General himself. A time frame is not offered for that
process.
Consequently, there are over 14,000 prisoners in BOP
custody with admittedly incorrect classifications. This impacts
upon many of these individuals' ability to draw on the
incentives that The First Step Act was meant to offer. The DOJ
position is that nothing can be done until a new version is
approved, the individuals reassessed, and then assigned new
risk levels.
Fourth, the NIJ report informs that PATTERN does not
perform equally based on race and ethnicity.
I do applaud the new NIJ consultants for helpfully
providing multiple metrics on this.
In sum, the tool over predicts which means unnecessarily
classifying as a high risk the likelihood of any re-arrests
specifically for African Americans, Asian Americans, and
Hispanic Americans.
Moreover, a recent DOJ publication revealed that a high-
risk classification applies to over 50 percent of African
Americans compared to 28 percent of race. Further, more work
should be done toward ameliorating potential disparities.
Fifth, sadly, NIJ report reveals that PATTERN operates with
significant rates of error and that it disproportionately
prefers false positives over false negatives. A false positive
is the incorrect prediction of high risk when the individual
remains crime free whereas false negative is the incorrect
prediction of low risk. This means that a choice has been made
to design the tool to perform far less accurately when
designating persons of high risk which means placing too many
individuals into the high-risk groupings than is necessary.
This is a curious choice. As The First Step Act was
designed, there is little danger to the public of incorrect
predictions, and this does not lead to immediate release.
Instead, the predictions relate to who is given more robust
incentives to engage with rehabilitative programming. Thus, a
policy directive could be to recalibrate patterns to reduce
false positives which in turn would increase the number of
individuals who are eligible to work toward earned time credit.
Sixth, so far there has been no validation of the needs
aspect of the broader system. The BOP is working to identify
appropriate programs, but at this time, a significant divide
exists between program availability and demand in many BOP
facilities, resulting in sort of a lottery system whereby the
luck of the draw in facility placement in some individuals will
have greater access than others to earning time credit.
In conclusion, I remain hopeful that there is a path for
congressional intent to be realized with The First Step Act. On
a risk guide, this will require continued effort to correct the
current inaccurate rating and the brainstorm on ways to reduce
racial disparities in the next version of PATTERN that must be
offered to the Attorney General for approval.
On the needs side of it, this means supplementing program
availability and then conducting a validation of the needs
component. Thank you.
[The statement of Ms. Hamilton follows:]
[GRAPHICS NOT AVAILABLE IN TIFF FORMAT]
Ms. Jackson Lee. Thank you very much for your testimony. I
thank all of you for your opening statements. We will now
proceed under the five-minute Rule with questions, and I will
begin by recognizing myself for five minutes.
Again, thanking all of you. Looking forward to the
testimony of the Witnesses.
Let me just briefly indicate that under compassionate
release--the facts that have come to my attention--21,150
motions were filed, 3,608 motions were granted, and so 6,957
motions were denied.
Ninty-six percent of the motions filed for compassionate
relief were done by the prisons. That means the BOP was
assessing no one, barely, and barely responding to the crisis
of COVID-19.
I'd like to explore that, first, with Ms. Guernsey and ask
with the framework whether or not the legislation or the
opportunity and the compassionate release was taken seriously
during the height of COVID-19, which continues today.
In your extensive work tracking compassionate relief and
COVID-19 deaths in custody, have you noticed a trend where BOP
has attributed an inmate's death to the very illness on which
the inmate relied to request compassionate relief?
If so, could you elaborate and tell us how frequently
you've seen this happen and can you talk about whether or not
there's been an active review of those with COVID-19 or maybe
vulnerable to COVID-19 and the BOP assessing them and providing
them with compassionate release?
Ms. Guernsey?
Ms. Guernsey. Thank you. I think that one of the things to
make very clear at the outset is that, oftentimes--in fact, in
almost every case--where an individual has died while seeking
compassionate release, if you pull up the motions that they
filed with federal court you will see that the prosecutors
oftentimes argue--in almost all cases, in fact--that the
conditions that the person suffers from aren't the type of
conditions that would arise to the level of an extraordinary
and compelling reason for a sentence reduction.
Oftentimes, they rely on the medical records that the
Bureau of Prisons has provided, and they oftentimes argued in
front of the district courts that the Bureau of Prisons was
providing adequate medical care.
What is so striking about that position from the Department
of Justice is that as soon as somebody ended up dying while
they were seeking compassionate release or dying from COVID,
generally, in prison, the Bureau of Prisons would immediately
or sometimes, in a delayed sense, issue a press release and
those press releases would always say as a justification for
the death that the person suffered from conditions--chronic
conditions--that the CDC had listed as making them more likely
to be vulnerable to severe illness or death.
So, the doublespeak coming out of the Department of Justice
is quite striking. You have prosecutors arguing in court that
the Bureau of Prisons is just fine, and you have the Bureau of
Prisons stating in press releases after the death happens
nothing to see here--in fact, this person was already ill.
Ms. Jackson Lee. Thank you. Thank you so very much.
Ms. Goodwin, would you explain what GAO found regarding
staffing issues in the BOP facilities and how these issues are
related to BOP's response to COVID-19 and its ability to
provide services and programming and care to inmates?
My time is running short. If you can give me a quick
answer, I would greatly appreciate it.
Ms. Goodwin. Okay. Thank you, Congresswoman. So, when we
did the report looking at BOP staffing we found that BOP faced
a number of challenges and they were very constrained with
their staffing and one of the effects of that is the delivery
of services.
Like, some of the folks who were in prison weren't able to
participate in various services or programming because the
staff weren't available.
Some of the other issues or concerns there would be, was
having the appropriate number of staff to actually provide
whatever kind of service that the inmates would need.
So, as you move forward from that BOP staffing report and
you look at, now, in this COVID-19 environment you have fewer
staff to assist with the inmates and the fewer staff, maybe
because of staffing issues or maybe because the staff have
become infected with the virus themselves, you just have so
fewer people to manage and address any of the challenges or
services that the inmates need.
So, it's kind of like a round--a loop.
Ms. Jackson Lee. Thank you. Thank you so very much.
Dr. Hamilton, I'm disturbed by the disparities of risk
assessment. Would you provide just a brief response on how that
impacts justice when there's a bias of where inmates may have
come from, bias on race, gender, and otherwise?
Ms. Hamilton. So, bias infects the system. So, often people
assume that an algorithm cannot be biased. If it's based on
biased data, then the algorithm becomes biased and then it
produces biased results such as an over prediction and in turn
then that encourages, unfortunately, people to believe that
these are dangerous individuals when it may simply be based on
bias.
Then, real briefly, there something can be done and the NIJ
consultants are aware of the discussions in the broader
community about how to reduce biases in these types of
algorithms.
Ms. Jackson Lee. Thank you very much. My time has expired.
I recognize Mr. Biggs for his questioning.
Mr. Biggs. Thank you, Madam Chair, and I thank all the
Witnesses for their testimony. I feel like we have received
important information already today and I appreciate your
testimony and, hopefully, I think we'll get an opportunity to
comment on that later.
I hope, Madam Chair, as we do a follow-up--no doubt do a
follow-up hearing on what we learned today that we'd bring in
Bureau of Prison personnel and so that we might be able to
question them as well. I think that would be important.
Ms. Kelly, thank you for being here today.
Ms. Jackson Lee. Mr. Biggs, I don't want to interrupt you,
but you are absolutely right, and we will be having the very
next hearing in a few next days on that very point.
Thank you so very much. I just wanted to answer you
immediately.
Mr. Biggs. Thank you. Thank you, Madam Chair.
Ms. Jackson Lee. I yield back.
Mr. Biggs. Thank you.
Ms. Kelly, as I mentioned during my opening statement, some
of the January 6th defendants have been held in solitary
confinement for extended periods of time.
What have you heard from detainees and their families or
lawyers about how these men are coping with incarceration
conditions that, simply, are not permissible in the United
States?
Ms. Kelly. Thank you, Ranking Member Biggs, for that
question and for inviting me.
It's, as you can imagine, extremely difficult. They were in
solitary confinement conditions for the first several months of
their incarceration, based on the pandemic, and then those
conditions were loosened up a little bit.
Now they are back to 22 hours in their cell with only two
hours out. That only gives them time to--that's all the time
that they have to try to communicate with their family, their
lawyers, to see the discovery evidence against them.
As I said, some of these men are not charged with any
violent crime, and at the same time that COVID is impacting
what's happening at the D.C. Jail for January 6th defendants,
their trial dates now are getting pushed further out.
For instance, I covered a hearing this week for Robert
Gieswein. He has been incarcerated for over a year, not
convicted of any crime, of course. He he will be in COVID
isolation for 30 days based on the testing that's going on
there.
Even if someone tests positive in his unit--he was in 14
days isolation, came out, someone else tested positive. He's
now in another 14 days. His trial was set to begin the end of
February. Judge Sullivan just moved it to the end of April,
now. So, he will be in jail almost 18 months before he even has
a chance to defend himself in a court of law.
Mr. Biggs. So, Ms. Kelly, you mentioned Mr. Bickman going
and investigating and coming up and determining that this kind
of isolated treatment is appropriate for the January 6th
detainees.
My question for you is, is this treatment that they're
receiving consistent of all Federal prisoners who are in
pretrial detention?
Ms. Kelly. That I don't know. That would be a great
question. Maybe some of the other Witnesses have an answer for
that.
The idea that now they've been returned to what now is
confirmed--I heard this from family Members and detainees over
the past week or so--but now that it's been confirmed by U.S.
Marshals, I don't know if that's the situation for all 130 some
odd Federal detainees, not including the ones who are just
there under pretrial detention.
I just don't have an answer for that. My assumption is that
no, this is not the situation for other pretrial detainees in
the Federal system right now.
Mr. Biggs. In October, Judge Royce Lamberth found the
director of the D.C. Department of Corrections and the D.C.
Jail warden in contempt of court for repeatedly refusing to
turn over the medical records related to the care of
Christopher Worrell, a former January 6th detainee who suffers
from non-Hodgkins lymphoma. What happened in that case and
what's the status now?
Ms. Kelly. So, Judge Lamberth repeatedly asked for the
medical records related to Christopher Worrell, who does suffer
from non-Hodgkins lymphoma. His case worsened while he was in
the D.C. Jail.
He was denied medical care. He also broke his hand and was
not getting attention for that. So, his medical condition
worsened. Finally, a doctor decided that he needed weekly
chemotherapy--intensive chemo and radiation every week, and
Judge Lamberth had enough, finally.
Now, Judge Lamberth has signed-off on many of these
pretrial detention orders, but because he was not getting the
documents that he requested in October, he cited both of them
for Contempt of Court.
He also referred this case to DOJ for civil rights
violations. I have no update on that. Then Mr. Worrell was
finally moved out of the D.C. Jail so he could get the care
that he needed. I still don't think he has a trial date yet
either.
Mr. Biggs. Who's Kathleen Landerkin?
Ms. Kelly. She was the Deputy Warden for the D.C. Jail. I
believe she is still there. As you know, Representative Biggs,
there were several Republican House Members who signed a letter
demanding her resignation after social media posts showed
extreme political bias against former President Trump and Trump
supporters.
It was racially biased. It was politically biased,
religiously biased. As soon as her posts were exposed to the
public, she deleted her Twitter account that showed exactly who
she was and her views of the people under her care.
Mr. Biggs. Thank you. Thank you. My time has expired.
Madam Chair, I would like to submit screen shots of Ms.
Landerkin's social media depicting what Ms. Kelly has just
stated.
Ms. Jackson Lee. Without objection, so ordered.
[The information follows:]
MR. BIGGS FOR THE RECORD
=======================================================================
[GRAPHICS NOT AVAILABLE IN TIFF FORMAT]
Mr. Biggs. Thank you.
Ms. Jackson Lee. Thank you.
Mr. Biggs. I yield to you. Thank you.
Ms. Jackson Lee. Thank you to the Ranking Member.
It's now my privilege to recognize the gentleman from New
York, the distinguished Chair of the Full Committee, Mr.
Nadler.
Chair Nadler. Well, thank you, Madam Chair.
Dr. Venters, you bring deep experience in evaluating not
just individual provisions of medical care in correctional
facilities but also managing and evaluating systemic issues
from your role at Rikers Island.
I know you visited the Brooklyn MDC during the first large
COVID outbreak in 2020, spoke directly to a number of
incarcerated people and also evaluated the adequacy of medical
care there. Was there anything about MDC's medical response to
COVID that stood out to you as more concerning than what you
saw at the BOP nationwide?
Mr. Venters. I think two of the things I was especially
concerned about were the approach of just letting the virus run
rampant--locking people in small spaces and letting the virus
run through housing areas with little or even no care, and the
other was that when people were reporting problems through sick
call slips, until we started looking into this the practice in
the facility was to throw those slips out.
If a person never got seen, there was no actual record of
what they had experienced and that was especially shocking to
me. I really hadn't encountered that previously in my work in
correctional health.
Chair Nadler. I gather this is totally contrary to be BOP
policy?
Mr. Venters. Yes. I, certainly, have looked at how sick
call is approached during the COVID pandemics because there's
only a few ways people can get care when they get sick with
COVID. So, it's a special area of scrutiny for me everywhere I
go.
Chair Nadler. Do you have a sense of how MDC Brooklyn is
dealing with medical care today as it faces among the highest
positivity rates for COVID-19 among detainees of any BOP
facility in the country, and did they seem to learn anything
from the initial outbreak?
Mr. Venters. Well, I haven't been back in the facility, I
should say. I think my concern now is that, like a lot of
facilities, there's a huge number of cases happening very
quickly but that there is still not a system to find and keep a
special eye on high-risk people--people with special-risk
factors--because while we all think of Omicron as being
potentially less deadly, overall, we know who are the people
that are most likely to die.
It's really important, as staff gets sick themselves and
there's less work that can be done, to keep a special eye on
high-risk people, both to check on them every day for symptoms
but also to aggressively push for potential release when they
meet the public safety criteria.
Chair Nadler. Thank you.
Professor Guernsey, can you explain the discrepancy between
your reported number of deaths and BOP's reported number of
deaths?
Ms. Guernsey. I'll attempt to do so with the information
that's publicly available, but it's really quite difficult.
The Bureau of Prisons is reporting 279 deaths. We know for
a fact that this number doesn't include the 18 people whose
names we learned through a Freedom of Information Act request
who were incarcerated in private facilities that had a Federal
contract.
The other problem is that the Bureau of Prisons is,
frankly, removing numbers from its website, particularly the
numbers with respect to these privately managed facilities.
The other issue that we're having is that the reporting of
deaths appears to be quite substantially delayed. Of the people
who I can track, which is very few--it's only 276 out of the
potential 297--several of them--more than a dozen died and the
Bureau of Prisons did not report their deaths within six
months.
Frankly, there were two that it took a year for the Bureau
of Prisons to report.
The other issue is that the Bureau of Prisons and, frankly,
Federal courts are granting compassionate release when people
are on their death beds and so they will, literally, be
released so that they don't die in chains, and those numbers
are never attributed to the total death count at the Bureau of
Prisons.
Chair Nadler. So, BOP's policy seems to be downright
dishonest is what you're really saying?
Ms. Guernsey. I can't speak for the motivation behind the
Bureau of Prisons. I can tell you that the data indicates that
there are substantially more deaths than they are reporting,
and that's just limited data. I still have two Freedom of
Information Act requests outstanding so it's difficult to do a
comparison.
Chair Nadler. Thank you. My last question is how has BOP-
reported information to family Members of individuals who died
in custody differed from the information you received from BOP
through Freedom of Information Act requests, and do you believe
the BOP is withholding information from families of individuals
who die in custody?
Ms. Guernsey. So, I've attempted to reach out to a lot of
family Members, and I've been quite surprised at how many say,
I had no idea that my family member, in fact, died from COVID.
I can think of two families off the top of my head that were
given information that their loved one died from a pre-existing
condition when, in fact, the FOIA that I received indicated the
death was the result of COVID-19.
Chair Nadler. Thank you. I yield back.
Ms. Jackson Lee. I thank the Chair very much for his
questioning.
Now, I'd like to recognize--pleased to recognize the
gentlelady from California, Ms. Bass, for five minutes.
[No response.]
Ms. Jackson Lee. We'll come back to her. We'll come back to
her. At this time, it's pleasing as well to recognize the
gentlelady from Florida and that is Ms. Demings for five
minutes.
Ms. Demings. Thank you so much, Madam Chair, and for
holding this very important hearing, and thank you to all our
Witnesses for joining us today.
There is no doubt the testimony we have heard about the
operation of the Federal Bureau of Prisons is troubling. I did
my internship--yeah, it was a lot of years ago, but I did my
internship in a Federal correctional institution.
There were challenges then and it is apparent today, based
on our Witnesses' testimony, that we still have a lot of work
to do.
We have heard testimony that describes the poor conditions.
My colleague, Mr. Biggs, talked about the filth that is just
unimaginable. We have heard about inadequate medical care and
attention, a failure to properly administer authorities granted
by Congress.
Yes, we can hold people accountable, but we know that we
can also treat them with dignity. I'm glad we're having this
hearing to confront these important issues and I hope we're
able to have someone--we have already heard it but, let me just
say it again--I hope that we're able to have someone from the
Bureau of Prisons before us soon to continue the conversation.
Chair Jackson Lee, thank you for your commitment there.
Ms. Goodwin, you testified that the GAO's work has shown
that BOP's deficiencies can, generally, be categorized into
three themes, one of which is inadequate management of staff
and resources.
Ms. Goodwin, could you just please expand a bit on that and
show how BOP's deficiencies in their management style, if you
will, contribute to other issues identified by your office?
Ms. Goodwin. Thank you for that question, Congresswoman.
GAO, every two years, does what we call the high-risk list
where we note the agencies that we think are at risk for issues
around fraud, waste, abuse, or mismanagement of resources.
So, this past high-risk list GAO listed the management of
the Federal prison system as an emerging issue because we were
concerned about those three themes, particularly, the first one
being management of resources and the number of times the
leadership has changed over.
When that happens, that affects everything else in the
agency. It affects the staffing. When we did the report looking
at BOP staffing, and to circle back to the question I got from
the Chair earlier, if you don't have the appropriate staff, you
can't get the appropriate programs to the inmates.
Then if you're short staffed, here comes COVID, and if
staff are going out because of COVID that's fewer and fewer
staff that you have to just provide services to the people who
are incarcerated.
Another reason we have listed BOP as an issue--as an
emerging issue on the high-risk list is just the management of
resources. When we did the staffing report, just getting
information about how BOP was conducting augmentation or
information about how they were providing overtime and how that
was being done across the number of staff that they had it was
problematic.
The agency has faced some fairly severe staffing challenges
before COVID, and then once COVID hit, those challenges were
only exacerbated.
So, we will continue to review everything that's happening
at the agency, and we'll see if they're an emerging issue now,
and we will make decisions about whether they become placed on
the high-risk list later on.
One of the things we're looking at is how they're going to
be implementing the First Step Act. Those requirements,
particularly the needs and risk assessment, that's ongoing work
we have right now. So, that will help feed into our
determination as to whether they end up on the high-risk list.
Ms. Demings. Ms. Goodwin, you also talked about inadequate
planning for new programs and initiatives that help inmates
prepare for a successful return back into our community. Can
you also expand a little bit on that and what needs to be done
there in your recommendation to improve the planning for future
success?
Ms. Goodwin. Yes.
The couple things that we looked at there, when BOP would
pilot new programs, just paying attention and keeping the data
on the effectiveness of those programs to see if it's something
that they could put up on a larger scale and provide throughout
the agency.
Just lessons learned from all that we found that the agency
wasn't adequately capturing that. So, at times, they might be
duplicating efforts, or they might just not be getting the
cost--paying attention to the cost benefits or cost
effectiveness of the efforts that they had ongoing.
So, you do something one year and then maybe 10-15 years
later you might try something again. Did you learn from what
didn't work the first time?
Ms. Demings. Thank you. Yeah, thank you. I'm out of time. I
just want to say very quickly, Madam Chair, Ms. Levi, thank you
so much. I didn't get to my question to you but thank you so
much for sharing your story. It is most helpful for this
Committee.
Madam Chair, I do yield back.
Ms. Jackson Lee. The gentlelady yields. Thank you so very
much.
Mr. Chabot, let me yield to you for five minutes and thank
you for accepting my apology.
Thank you.
Mr. Chabot. No problem.
Madam Chair, the conditions of inmates at prisons are
important. No question about that. Before there was an
incarceration, a crime was committed.
Back in the summer of 2020 following the horrific death of
George Floyd, many protesters and elected officials, mostly
Democrats, across the country proclaimed that because Mr. Floyd
had died at the hands of a police officer it was time to defund
the police.
In cities across America we did, indeed, see that
defunding, and we have seen the Federal prosecutor, again,
overwhelmingly Democratic--liberal prosecutors--deciding that
they no longer prosecute so-called low-level offenses, like
shoplifting which, for example, resulted in mobs with
sledgehammers rampaging through department stores.
We have also seen the left's relentless campaign to
eliminate cash bail. Criminals commit crimes, they're quickly
released on low or no bail, and they go out and commit more
crimes.
It's even gotten too much for, of all people, Governor
Newsom in California. Apparently, thieves have been raiding
cargo containers on trains near downtown L.A. for months. For
months.
Thousands of empty cardboard boxes were strewn [inaudible]
after they'd been plundered. Newsom said it looked like a third
world country. No wonder we have a supply-chain problem.
Unfortunately, this is just the tip of the iceberg when it
comes to the level of crime in America, particularly in cities.
Madam Chair, I urge the majority to invite the Attorney
General and the FBI to testify--the Director of the FBI to
testify before this Committee to discuss their strategy for
combating the current spike of violence and crime in this
nation.
Now, I'd like to direct a question to Ms. Kelly. As a
result of the Antifa and BLM-led marches, which, in many cases,
led to riots and violence, there was an effort by the left,
including some Democrats in Congress, to defund the police.
Because most major cities across the country are controlled
overwhelmingly by Democrats, many police departments were,
indeed, defunded.
For example, Portland, Oregon, $16 million cut; Baltimore,
$23 million; Philadelphia, $33 million; San Francisco, $120
million; Austin, Texas, and L.A., $150 million; and New York
City cut its police department by a billion dollars.
My question is, do you believe that this defunding of
police has contributed to the increased crime rates that we're
seeing currently?
Ms. Kelly. This question is to me?
Mr. Chabot. Yes. Ms. Kelly.
Ms. Kelly. Oh, yes. Well, I assume so. I'm not an expert
specifically on that.
I will say that people who I hear from, based on my work,
the disparity in the treatment between Capitol protesters and
those who rioted and did far more destruction to the country,
responsible for $2 billion worth of damages, thousands--
hundreds or thousands of police officers attacked and
assaulted, and nearly two dozen deaths related to what happened
in the summer of 2020, what I hear mostly from Americans is
outrage over this disparity between the treatment of those
rioters, activists, whatever you want to call them, and what
happened for four hours at the Capitol, the DOJ and FBI
rounding up people every single week, mostly on misdemeanors,
but nonetheless, treating them as domestic terrorists while we
have so many of the offenders from 2020 who have not been
charged anywhere close to what these people have been.
Mr. Chabot. Thank you. Just to follow up, I would also note
that during the course of those riots that I mentioned earlier
there were approximately 2,000 police officers who were
injured, some severely, and, unfortunately, some died.
I'd also note that one of the things that my Democratic
colleagues in Congress wanted to do was to take away their
qualified immunity, which would, basically, allow people to sue
police officers in their personal capacity, in which case their
pension funds, their home, their college funds for their kids,
could all be at risk of greedy trial lawyers.
What sane person is going to want to go into policing if
you're actually going against their personal assets?
It's no wonder that we've seen morale decline to a
considerable degree, less proactive policing in some
communities across the country, and the resulting rise in crime
rates.
Whereas this is a very important topic, Madam Chair, that
we're discussing today, we ought to be discussing that crime
and the dramatic impact it's having on the quality of life in
this Nation across the country.
I yield back.
Ms. Jackson Lee. Mr. Chabot, let me thank you. I would be
remiss if I did not remind our Committee that we know that
through the January 6th investigation there are several Members
in this Congress that they are concerned about.
They are contributing to the incidents that occurred, and I
think as we look at the video, we saw many people that were not
those that you refer to, Mr. Chabot, who were beating police
officers, to my horror and outrage.
We need to look at these issues globally and recognize that
the facts are important when we're in this Committee as well.
Let me indicate that we think Ms. Bass has come online and
I'm pleased to yield to her five minutes at this time.
Ms. Bass. Thank you, Madam Chair. I apologize for having
technical difficulties on my end, but I appreciate your
leadership for holding this hearing today.
I wanted to ask the Witnesses, many communities around the
country have been experiencing an uptick in crime and some
people are concerned that maybe that uptick is due to early
release programs because of the pandemic, and I wanted to know
if there is any data about what is happening to the people who
were released.
Have they gone out and engaged in new crimes and have they
been reincarcerated, as opposed to what the Witness described
earlier, which was technical, because of the problem with her
ankle bracelet?
I wanted to know about people who have been released
because of the pandemic and if there is evidence,
documentation, that they have gotten out and been involved in
crimes--also, people who were released not just because of the
pandemic but because of compassionate release.
Dr. Goodwin, if you could respond.
Ms. Goodwin. Thank you for that question, Congresswoman.
GAO hasn't looked at that issue, yet. It's something that
we can, certainly, work with your office if it's something you
want GAO to investigate. We don't have a lot of information on
that right now.
Ms. Bass. Can any of the other Witnesses speak to that?
Ms. Guernsey. If I may.
Ms. Bass. Yes.
Ms. Guernsey. I know that in the December 21, 2021, an
Attorney General memorandum that reversed the decision that
individuals on home confinement had to be sent back to prison,
the Attorney General cites a very specific number of people who
have been on CARES Act home confinement who were returned to
prison, and that number is 289.
Thinking about the fact that there were 36,000 people
placed on home confinement, 289 is a very small number to have
returned.
It's my understanding that the Bureau of Prisons, in fact,
has the data that breaks that down even further into people who
were returned for technical violations and people who were
returned for new crimes, and it's my understanding that the
people who were returned for new crimes is relatively small. I
mean, we're talking less than 10 people.
In terms of the compassionate release data, I do not have
that.
Ms. Bass. So, 289--you cannot distinguish whether those
were new crimes or just technical?
Ms. Guernsey. There is no public data that indicates
whether they were new crimes or technical. I do know that there
was something published in April of 2021. A gentleman named
Ames Grawert from the Brennan Center of Justice indicated that
there were three who had been returned as of April 2021 for new
crimes.
Again, the Bureau of Prisons has that data. It cited that
data in a memo that it submitted to the Attorney General's
office and I would urge this Committee to ask for that data
from the Bureau of Prisons.
Ms. Bass. Thank you. I appreciate that.
Dr. Venters?
Mr. Venters. I don't have any information on that question.
I apologize.
Ms. Bass. Okay. All right. I appreciate that.
The Witness that described being violated because of the
technical problem with the ankle bracelet, I wanted to know if
you could elaborate a little more.
When it was discovered that it was a technical problem, was
there any consideration given to that at all?
Ms. Levi. What happened is that my attorney brought in
evidence to show that I had been attending a class that I had
previously attended, and it was acknowledged that I had
attended that class before. My case manager at the halfway
house did not follow through, I believe, and it was--
Ms. Bass. Didn't you say that--didn't you say that it
wasn't just a matter of you attending class but that your ankle
bracelet didn't work?
Ms. Levi. Yes, and several times my ankle bracelet didn't
work and that's happening to the thousands of people who are
out. Your ankle bracelet will ping when you're in different
places. Your ankle bracelet will ping when you're home.
Sometimes when you're being called there are people who will
speak a foreign language that you can hardly understand who
will call you.
Ms. Bass. What is your situation today?
Ms. Levi. My situation today is that I am on--been released
on compassionate release by my judge as a result of the fine
that was given out by me being reincarcerated.
Again, I say the people who are on compassionate release
are out right now attempting to do just what I did, try to
gather their self-back together, try to reunite themselves with
their families.
They're taking classes. They're buying homes. They're going
back to school. They're doing all these things, and that
threat, thankfully, was just removed from over their heads by
Judge Garland.
We really appreciate that. There's so much that can be done
towards giving these people compassionate release because not
just technicalities--most people are not committing new crimes,
as the lady said before. The level of new crimes being
committed by people on compassionate release is almost minute,
10--less than 20 people, probably, out of thousands of people.
Ms. Bass. Well, I do wish you success in the future. Thank
you. I yield back, Madam Chair.
Ms. Jackson Lee. The gentlelady's time has expired. Thank
you for your questioning.
Now, I'm pleased to yield five minutes to Mr. Steube. You
are recognized.
Mr. Steube. Thank you, Madam Chair.
We've heard a lot today from Witnesses about the Bureau of
Prisons. I do hope that--unfortunately, we don't have a Witness
from them today. I do hope the Chair is committed to bringing
somebody in so we can ask some of these questions on both
sides. I think we both have questions that we want answered.
We have heard a lot today about Democrats wanting to let
folks out of prison in the middle of the biggest crime wave in
decades. They also don't want to let out people who have been
charged with misdemeanors who are languishing in prison for
January 6th.
I want to read and quote from the District judge his exact
quote, and I quote, ``For the reasons stated in open court, it
is adjudged that the warden of the D.C. Jail, Wanda Patten, and
director of the D.C. Department of Corrections, Quincy Booth,
are in civil contempt of court,'' U.S. District Judge Royce
Lamberth of Washington ruled.
``The clerk of the court is ordered to transmit a copy of this
order to the Attorney General of the United States for
appropriate inquiry into potential civil rights violations of
January 6th defendants as exemplified in this case.''
Now, we haven't heard from DOJ as to whether they're
actually doing that or not. I would love for another
opportunity to question AG Garland in the Full Committee about
that.
He goes on, ``I find that the civil rights of the defendant
have been abused,'' Lamberth said at a hearing:
``I don't know if it's because he's a January 6th defendant or
not, but I find this matter should be referred to the Attorney
General of the United States for a civil rights investigation
into whether the D.C. Department of Corrections is violating
the civil rights of January 6th defendants in this and maybe
other cases.''
I ask unanimous consent, Chair, to enter into the record
Fox News article, ``Federal Judge Finds D.C. Jail Warden in
Contempt.''
Ms. Jackson Lee. Without objection, so ordered.
[The information follows:]
MR. STEUBE FOR THE RECORD
=======================================================================
[GRAPHICS NOT AVAILABLE IN TIFF FORMAT]
Mr. Steube. Thank you.
Ms. Kelly, my questions are for you. Even January 6th
suspects who were accused of minor crimes, ones simply charged
with trespassing or parading, are the targets of hyperbolic
statements and smears by Merrick Garland's propaganda press
team.
Can you speak to some examples of this? Just recently, in
Florida I read of an individual who simply walked into the
Capitol, was not violent, didn't commit any other crimes than
walking in, gets a year of probation, has to deal with house
arrest and all these other things, which, if it was reversed,
like the Department of Interior, we have heard nothing of those
who raided the Department of Interior, questions I asked AG
Garland the last time he was before the Committee.
Could you expand on that?
Ms. Kelly. Yes. Thank you so much, Representative. It's
important to note that the most often used charge for Capitol
protesters is a Class B misdemeanor called parading or
picketing in the Capitol building, and that is what most of the
defendants--not necessarily the ones in the D.C. Jail, but most
of the defendants have been charged with.
Again, it's important to remember these people, almost all
of them, have no criminal record. That doesn't stop prosecutors
in Joe Biden and Merrick Garland's Justice Department from
suggesting that they are domestic terrorists, even if they were
let into the building by Capitol police, as we now have
surveillance video that proves that this is the case--went in,
thought that they were allowed in, took selfies. Some were in
for 5-10 minutes and left peacefully. They were not arrested.
They were not told they weren't allowed there, and then woke up
to FBI raids at their homes.
The Justice Department is asking for harsh penalties--
sometimes three years' probation, and sometimes home detention.
What's even more egregious are D.C. District judges who even go
above and beyond what the Justice Department is asking and
imprisoning these paraders for 30, 60, 90 days in jail,
condemning them as potential terrorists attempting to overthrow
democracy that day.
All the hyperbole you see in the press you also hear in the
courtroom. So, that is what they're doing to trespassers who
thought they were doing nothing wrong on January 6th.
Mr. Steube. Some of that video shows that there was
officers that were standing there while people entered and were
doing nothing about it. The treatment of January 6th suspects
has been far different than BLM rioters and others accused of
liberal goals through violence, including the Department of
Interior that I asked AG Garland about, and he seemed to not
even know that happened blocks from his office.
January 6th suspects have been interrogated by the FBI
about their political beliefs such as whether they thought the
2020 election was fair. Can you discuss the role political
motivations have played in the treatment of January 6th
suspects, both in prison and in terms of prosecution?
Ms. Kelly. So not only are they asked about their political
views by investigators, but they've also been asked what kind
of news that they watch, yes, whether they believe that the
2020 election was stolen, their views on immigration.
I've seen in sentencing memos, especially for one man who
was sentenced for parading in the Capitol--they retrieved
social media posts from his deleted Facebook account that were
negative against Joe Biden, Nancy Pelosi, the Democrats, and
that was used as evidence to try to convince a judge,
successfully, that this particular man should go to jail for
three months for parading in the Capitol.
Mr. Steube. My time has expired. Thank you. Thank you for
being here.
Ms. Jackson Lee. The gentleman's time has expired.
I'm very pleased to yield five minutes to the gentlelady
from Georgia, Ms. McBath. I thank her for her service to this
Committee.
Ms. McBath?
Ms. McBath. Thank you, Madam Chair, and good morning to our
Witnesses. I'm really pleased that you have been able to join
us today as we continue to discuss this critically important
piece of criminal justice legislation, the First Step Act, and
to examine how the Board of Prisons has responded to the COVID-
19 pandemic.
I remember specifically the day that the Judiciary
Committee--we had a hearing and we also had discussions on the
compassionate release of nonviolent offenders under COVID-19
conditions.
Today, I am glad that we are revisiting what appears to be
the Board of Prison's stalled implementation and also their
neglect of just the basic health policies and practices for
those that are incarcerated.
We know that the First Step Act was a major stride forward
in criminal justice reform designed to address the systemic
issues in our Federal prison system, and this bipartisan piece
of legislation was crafted to reform sentencing and improve
prison conditions.
It measures--it includes adding anti-recidivism programs,
amending sentences based on good time credits, and expanding
the rights of female inmates, particularly, female inmates who
are mothers.
The First Step Act, for example, requires feminine hygiene
products to be free and, largely, prohibits the use of
restraints on pregnant women and those that are in postpartum
recovery.
Despite these positive reforms, since the bill was signed
into law on December 21, 2018, many of these provisions have
not been implemented, and it is our responsibility here as
policymakers to ensure that transformative wins of this bill
are fully being carried out.
My questions are for Ms. Goodwin today, and thank you so
much, Ms. Goodwin, for visiting us again today. I really
appreciate you being here.
In your 2021 report on pregnant women in Federal custody,
you found that out of the Board of Prison policies that address
the treatment and care of pregnant women that only eight of
these policies were fully aligned with the national guidance
for the health and safety of pregnant women and following this
report that the Board of Prisons improved their policies to
align with national standards.
Can you attest to that?
Ms. Goodwin. Yes. Thank you, Congresswoman. So, that's
correct. When we did the work looking at the care and treatment
of pregnant women in DOJ custody, we found that with those
national standards BOP wasn't fully aligning or had not fully
aligned with quite a number of them, and those national
standards speak to issues around providing nutrition, providing
prenatal care, providing mental health services, and we also
looked at whether or not they were restraining pregnant women.
We made our recommendation to the BOP. They agreed with the
recommendation, and they are in the process of fully aligning
the ones that--we have a table where we note what was fully
aligned and what was partially aligned. They are in the process
of fully aligning the ones that we found to be deficient.
However, we are leaving that recommendation open until all
those categories that we noted are fully aligned. We will be
circling back to BOP to find out where things are.
Then another recommendation that we had was to the U.S.
Marshals about the restraining of pregnant women.
Ms. McBath. Well, thank you, and I think this Committee
would be more than interested to have access to that
information and that data once you have access to it as well.
I'd also like to know, since the COVID-19 pandemic has the
Board of Prisons implemented additional policies to protect
pregnant women from the increased risks of the disease itself?
Ms. Goodwin. My understanding is that they have. What is
interesting about the pregnant women's report that we did our
last site visit in January 2020, right as everyone was
beginning to understand how dangerous the COVID virus was, and
then in the process of pulling the report together, we did
circle back to BOP to ask about what they were doing in terms
of protecting pregnant women.
They talked about providing special housing, putting
women--pregnant women in additional special locations to keep
them away from the general population.
That's something we didn't go into a lot of detail in. It
is something--as we do future work on how BOP treats pregnant
women it's something that we will definitely look into.
Ms. McBath. Well, thank you so much. We really appreciate
that.
There, again, Ms. Levi, I am so sorry for all that you've
appeared to suffer through, and it's just kind of disturbing to
hear that there may be others as well that are incarcerated
that are going through some of the same kinds of conflicts and
problems.
With that, I yield back.
Ms. Jackson Lee. The gentlelady yields back.
I would now like to recognize Mr. Tiffany for five minutes.
Mr. Tiffany. Thank you very much, Madam Chair. Thank you
for the hearing today and thank you to all our Witnesses that
are here today. It's good to have you all here.
I just would share a comment regarding Mr. Venters'
testimony where he was talking about an independent assessment
of COVID. I would say we should not just do it with the Bureau
of Prisons, we should do that for all government, including the
Centers for Disease Control.
There should be a full, thorough, independent review of all
the actions regarding COVID over the last couple months.
I would hark back to March 30, 2020, when the Chair of the
Judiciary Committee urged Attorney General Barr to assess all
prisoners for release regardless of the type of institution in
which they are housed, the seriousness of their offense, or the
potential recidivism risk they may present.
So, here we are today. We're talking about a significant
issue. This Committee is whistling past the graveyard of what
is the most important thing on the minds of Americans at this
point and that is crime. Well, maybe inflation. Maybe the
border might be more important for some.
I got to tell you, for a lot of people, especially in big
cities--and I'm hearing it from them--is crime, and they're
deeply concerned about it. You see smash-and-grab going on
across the country, Wild West train robberies. You got
carjackings that are up all over the country, especially the
big cities and, of course, the murder rate is at its all-time
high in what was it, 15 cities across America where we have
been weak on crime, and we're not dealing with that. We're not
dealing with that here today.
On November 21, 2021, Darrell Brooks drove his car through
a Christmas parade, injuring over 60 individuals and killing
six, one of whom was an eight-year-old.
In response, after seeing these horrific scenes in
Waukesha, we learned that Darrell Brooks intentionally drove
his SUV through these parade goers. In 2006, he pled guilty to
statutory sexual seduction.
In 2016, a warrant was issued for his arrest for jumping
bail. In 2020, he was charged with recklessly endangering
safety being a felon in possession of a firearm and later
released on bail. On November 21st, he, again, was criminally
charged for allegedly running over the mother of his child with
a car.
Despite that long history, the Milwaukee DA set bail at
$1,000. Here's what that district attorney said back in 2007--
John Chisholm:
``Is there going to be an individual I divert or I put into
treatment program who's going to go out and kill somebody? You
bet. Guaranteed. It's guaranteed to happen. It does not
invalidate the overall approach.''
This is what's happening across the United States with
these weak district attorneys. They're worse than weak. They
are fostering crime.
Today, I call on the Governor of Wisconsin, who has the
authority--he can rectify this problem with this district
attorney in Milwaukee County to relieve that district attorney
of his duties, because he has done this before in the case of
Cassandra Lutz, who was given a fatal dose of heroin by
Jeremiah Schroeder, who got out on a low bail.
So, we're seeing this all over the country. Speaking of
Milwaukee, we have the Milwaukee aldermen calling to prosecute
South Korean automakers because they're encouraging car theft
in the United States.
Think about it. Elected officials blaming a car company for
the car thefts that go on in their city. It is crazy. Think
about the Minnesota Freedom Fund, which Vice-President Kamala
Harris in 2020 said, ``we got to get money to these people who
are rioting in Minneapolis,'' and they nearly burned the city
down.
Well, she got plenty of bail money into the Minnesota
Freedom Fund and $1,500 went to a guy that has now committed a
murder.
That, ladies and gentlemen, is what is going on in America
at this point. I'm going to go back and reread what the
District Attorney for Milwaukee County, Wisconsin, said in
2007:
``Is there going to be an individual I divert or I put into a
treatment program who is going to go out and kill somebody? You
bet. Guaranteed. It's guaranteed to happen. It does not
invalidate the overall approach.''
They don't care about the criminals--or they care about the
criminals. They don't care about the victims, and it's time for
us to begin looking out for victims.
I want to ask one last question before my time is up.
Ms. Guernsey, do the January 6th defendants have a
legitimate claim?
Ms. Guernsey. I'm not quite sure what you mean in terms of
a legitimate claim. I do want to highlight that I think that
the things that are happening to some of the January 6th
defendants are truly appalling. I don't think that they're
isolated to the January 6th defendants. I think that--
Mr. Tiffany. Thank you very much. I agree with your answer
there.
Ms. Jackson Lee. Thank you. The gentleman's time has
expired. Thank you.
I'm now pleased to recognize the gentlelady from
Pennsylvania and thank her for her service. Ms. Dean is
recognized.
Ms. Dean. Thank you, Madam Chair, and I thank you. As we
continue to grapple with this pandemic, I thank you and this
Committee for continuing to shine a light on this important
issue.
I'd like to start with you, Ms. Levi, and I thank you so
much for sharing your story, your experience, with us. I have
two brief questions:
(1) How are you doing today? How are you and your mother
and your family doing today?
(2) Do you think compassionate release is adequately and
equitably being used?
Ms. Levi. First, I'm doing great. Good health. My mother's
in good health. My mother is just awesome. I can't say too much
about her. We live in a three-story house, and she walks those
steps every day. I mean, she's in good health and she's just
concerned, like I am, about the people who got left behind.
She hears me talking to ladies who call me on the phone,
now that I can receive phone calls, and she hears from them and
she knows that, no, compassionate release has not been applied
as it should be.
Most wardens refuse to even put it in for most people who
are there, and when they do it comes back--mine came back
denied before. I got denied compassionate release. I got
denied--
Ms. Dean. Even with your history? Even with your history of
lung cancer and (simultaneous speaking)--
Ms. Levi. Yes, even with my history of lung cancer, even
with my history of initiating programs for the elderly, going
to school, and doing the things that I was doing positive
inside. Even with all that, I got denied initially for
compassionate release. Yes.
Ms. Dean. Thank you.
Ms. Levi. That thousands of people--I mean, no, it is not
being applied. The Bureau of Prisons should really take the
initiative and start a program where it will be almost
mandatory that people who qualify, who meet those needs
assessments, and who really fit the criteria, it should be
mandatory that they apply for compassionate release for these
people. Especially the elderly, they warehouse people.
Ms. Dean. Thank you so much. I appreciate those updates and
your commonsense response.
Professor Guernsey, with your troubling expertise and what
you know about the inaccuracy of the reporting in terms of
COVID infection and COVID death, Congress made clear that we
intended for the Bureau of Prisons to more broadly use
compassionate release authority, and this was even more
important during the COVID pandemic.
I introduced this Congress legislation, the emergency GRACE
Act, that allows people to petition the Federal court directly
in a public health emergency rather than waiting for BOP to Act
within 30 days.
Do you think this type of legislation would help, would be
more effective in terms of the use of compassionate release?
Maybe, if you can add to that also, what can we do about
transparency of these numbers in the areas that you show a real
delinquency?
Ms. Guernsey. Certainly. I think that we have been much
more successful in getting individuals out on compassionate
release in front of the Federal district courts--3,000 at the
very least, compared to the 43 in the Bureau of Prisons.
That said, I would like to caution that even petitioning
the Federal courts is not a perfect solution because most
judges have compassion fatigue. We have all been living through
this pandemic, and you start to become numb to the reality of
what's happening in prisons, which I think is why it's really
important that we have the independent oversight and people in
there reporting what's really happening in the Bureau of
Prisons. I do think the GRACE Act is a wonderful step forward.
In terms of the Bureau of Prisons and its lack of
transparency, what I think is quite troubling is that a lot of
the information that this Committee may seek has already been
ordered to be provided.
The First Step Act provides that the Bureau of Prisons
shall provide the data as to how many people apply for
compassionate release--how long did it take, the justifications
for the denials, did someone die while their denial was
pending--and the Bureau of Prisons is, simply, not reporting
that data.
Ms. Dean. Thank you. Thank you very much.
Mr. Venters, I have just a little bit of time left, but
your disturbing testimony as to sick calls being thrown away,
destroyed, ignored--what can we do? What should we do?
Mr. Venters. Well, we won't get a better outcome unless we
establish real oversight--independent oversight--of health care
in the BOP. Otherwise, if law enforcement is overseeing the
care that they provide themselves, we're going to get the same
results over and over.
The CDC, independent organizations, need to be involved in
overseeing this care.
Ms. Dean. Thank you very much.
Madam Chair, my time has expired. I yield back.
Ms. Jackson Lee. The gentlelady's time has expired. Thank
you very much.
It's my privilege now to yield to Mr. Massie for five
minutes. You're recognized.
Mr. Massie. Thank you, Madam Chair, and thank you for
holding this hearing. I hope we do get some correctional
officers as Witnesses.
Mr. Biggs. Madam Chair?
Ms. Jackson Lee. You want to raise your volume? Thank you.
Mr. Massie. Can you hear me now?
Ms. Jackson Lee. No.
Mr. Massie. Okay. I'll work on that. Can you come back to
me?
Ms. Jackson Lee. All right. Is Ms. Spartz able to be
recognized?
Ms. Spartz?
[No response.]
Mr. Biggs. I don't believe she's on, Madam Chair.
Ms. Jackson Lee. All right. Is there another person
besides--I see Mr. Jordan on but I'm not sure if he's ready
now?
Mr. Biggs. Yeah, we'd defer--
Ms. Jackson Lee. Mr. Massie?
Mr. Biggs. Madam Chair, it's interesting to me that one of
the most sophisticated technical geniuses on this Committee is
Thomas Massie and he can't get his microphone to work. That's
interesting.
Ms. Jackson Lee. He's a scientist. If you don't mind, Mr.
Ranking Member, I will go to a--let me see if he is ready now.
Mr. Massie?
[No response.]
Ms. Jackson Lee. Okay. Mr. Massie?
Mr. Biggs. Still having troubles hearing you, Thomas.
Madam Chair let's go to a Democrat and then we'll come back
to Mr. Massie.
Ms. Jackson Lee. We'll work on Mr. Massie. He's probably
got a new scientific approach. Thank you.
Again, thank you, and it's my privilege and pleased to
yield to the gentlelady from Pennsylvania, Ms. Scanlon, for
five minutes.
Ms. Scanlon. Thank you, Madam Chair, for calling this
hearing today.
I will just say one of the issues that built bipartisan
support for passage of the First Step Act was mass
incarceration throughout the United States. We incarcerate
exponentially more people per capita than any other country in
the world, a staggering 698 out of every 100,000 people, for a
total of over 2 million people in jail in the U.S.
As we try to move our prison system to a more
rehabilitative and a more productive model, we know that there
are longstanding problems with that prison system and
particularly its treatment of Black and Brown inmates, and that
must be addressed.
For example, in 2015 the Washington Lawyers' Committee for
Civil Rights released a report condemning conditions in the
D.C. Jails, and those conditions and findings have been largely
ignored until a more diverse population recently was
incarcerated there. We know there is plenty of work to do.
Dr. Goodwin, I am interested in the GAO's findings that the
Bureau of Prisons has been deficient in planning for new
programs and initiatives to help inmates prepare for a
successful return to the community. Can you elaborate on your
concerns in this regard and share any suggestions for
congressional action to move this process along?
Ms. Goodwin. Well, thank you for that question,
Congresswoman. I will hearken back to report that we did on BOP
staffing and the concerns that we raised there and talk about
like the challenges that that presents for individuals
preparing for re-entry. If you don't have the appropriate
staffing levels, you don't have the folks to provide the drug
treatment, education programs, or any of the other programs or
activities that an inmate would need to help earn them time
credits.
We've got the new proposed legislation out there, but we at
GAO, we're also mindful that if the staffing numbers or the
numbers aren't there, then the programs won't be there, and the
inmates aren't able to earn those time credits. So, that
affects what their re-entry looks like.
We've also done work looking at the Federal prison
industries because that is also another way that to provide
additional job skills to folks who are incarcerated, but if
those programs aren't in place, time credits aren't getting
earned and then when people are coming out of prison, they're
coming out with fewer job skills. So, that's a concern that we
have, absolutely.
Ms. Scanlon. Thank you.
Ms. Guernsey, did you have anything to add?
Ms. Guernsey. I don't.
Ms. Scanlon. Okay. How about you, Mr. Venters?
Dr. Venters. No.
Ms. Scanlon. Okay. I mean I do think it is really, really
important that we are setting people up for success upon
release, otherwise we end up in this endless cycle of
incarceration, and that doesn't help any of us. I would like to
keep looking at that, and thank you, Madam Chair. I yield back.
Mr. Biggs. Madam Chair, if I may--
Ms. Jackson Lee. The gentlelady yields back.
Yes?
Mr. Biggs. I think Mr. Massie is still working on his
technical difficulties and I think Mr. Jordan is ready to go if
that is okay.
Ms. Jackson Lee. All right. Thank you so very much, Mr.
Biggs.
I am very pleased to yield to the Ranking Member of the
Full Committee, Mr. Jordan, for five minutes.
Mr. Jordan. Thank you, Madam Chair. Appreciate the
Witnesses, appreciate you putting this hearing together.
Ms. Kelly, let me see if I have the facts straight: First,
the Deputy Warden at the D.C. Jail, Ms. Landerkin, the person
in charge of day-to-day operations at the jail, had a number of
social media posts in the previous couple years expressing her
dislike for the former President and anyone who may or may have
not supported, or may have supported the President. One of
those tweets, she said if you're behind Trump, you are trash. I
think the Ranking Member of the Committee put those up earlier.
Second, Ms. Kelly, have talked to individuals in the D.C.
Jail personally and they have expressed the conditions under
which they were being held that seemed to reflect the attitude
that Ms. Landerkin conveyed in that tweet.
Third, on October 13, 2021, Judge Lamberth held the D.C.
Warden in contempt and asked the Department of Justice to
investigate a possible civil right violation in the way they
were being held in this facility.
Fourth, the U.S. Marshall Services has moved inmates out of
the D.C. Jail because of the poor conditions of that facility.
Are those four facts accurate?
Ms. Kelly. Yes, that is correct.
Mr. Jordan. All right. Well, Madam Chair, one of the things
I think we need to know, what is the status of the Department
of Justice investigation? You had a Federal judge ask them to
investigate. That would be something--I mean, ask them to
investigate a situation where the U.S. Marshall Services felt
it was warranted to move people out of the very facility that
he asked the Department of Justice to look into.
I think it would be important for our Committee, certainly
this Subcommittee and the Full Committee to understand what is
going on there because I agree with what Professor Guernsey
said earlier: ``We need to be concerned about the conditions of
anyone in Federal prison to make sure the Constitution and due
process are being followed.''
There was a reason we all came together. We all came
together on the First Step Act in the last Congress. That was
an important first step. We are concerned about the compassion
and the due process and the Constitution that need to be
involved with this type of situation, and frankly the
rehabilitation concern. We are concerned about all those.
It is important I think we get the answers from the
Department of Justice on that.
Also, I think it is important for this Committee to balance
everything because the biggest concern I hear from our
constituents right now, the constituents I get the privilege of
representing, is the dramatic increase in violent crime. There
is a distinction we need to make. Violent criminals need to be
incarcerated; others we need to look at how we can in a
compassionate way help them get on with their lives and be
productive citizens. So, that is what I hope we will do.
I guess I would maybe let Ms. Kelly respond a little bit
and then I would love to hear as well from Professor Guernsey
on some of the things I just outlined.
Ms. Kelly, if you could go first?
Ms. Kelly. Well, thank you so much. Thank you, Member
Jordan, and thank you for your attention to this matter.
I'd like to thank Professor Guernsey for acknowledging the
mistreatment of January 6 defendants.
What we really have is political prison in the United
States. We have defendants, Americans who protested the
election of Joe Biden who are not being treated the same as
other political protestors, including those with similar, if
not far more dangerous offenses than what happened on January
6. So, I appreciate the attention to this.
I think it's also important to note given all that we're
hearing about the pandemic, that this Justice Department
prosecutors continue to seek pretrial detention for January 6
defendants and extending their pretrial detention orders signed
off by Federal judges. There is no compassion or consideration,
at least in this legal and judicial system, and it sounds like
that extends throughout the country, certainly when it comes to
the situation with Ms. Levi.
I once again just appreciate the Committee's attention to
this.
Mr. Jordan. Thank you.
Professor?
Ms. Guernsey. I think that the defendants from the January
6 had the ability and the privilege that a lot of individuals
who are currently incarcerated in Federal custody didn't have.
They had people who were able to give them voice and to help
them amplify their voices outside of the prison context. So, I
want to be careful because when we talk about the treatment
that they're undergoing, it's quite similar for most of my
clients who've been held in pretrial detention, not identical
given the conditions of the jail, but this is something that
Black and Brown individuals and non-January defendants face
across the country.
The other thing that I want to address, too, is that I
think that addressing the fact that there has been an increase
in violent crime is concerning. Of course, we're all concerned
about that, but mass incarceration is not a way out of that.
So, I want to be really careful when we think about potential
solutions that we really are thinking about--
Mr. Jordan. I know my time is up, let me just ask: So, what
we have seen from certain prosecutors and their unwillingness
to prosecute certain crimes now in large urban areas around the
country, that have been elected to the prosecutor's position,
is that contributing to the increase in violent crime we are
seeing? Because I certainly think it is. We want to make sure
bad guys are off the street, but we also want to treat people
with the due process and constitutional principles that our
great country, our great system has. So, that to me is where
the focus has to be, particularly for this Subcommittee.
Ms. Jackson Lee. The gentleman's time has expired.
You want to finish your last sentence?
Ms. Guernsey. I was going to say I think that the causes of
crime are really complex, and they hinge on various social and
economic factors, particularly given the pandemic that we've
been living through for these past two years. So, I just urge
that incarceration is not the answer.
Ms. Jackson Lee. I thank the Witnesses. Ranking Member, I
thank you for your questioning.
I now yield five minutes to the gentlelady, thank her for
her service, Ms. Bush from Missouri.
You are recognized.
Ms. Bush. Yes, thank you. St. Louis and I appreciate you,
Chair, for convening this important hearing. I am so glad to
hear all this advocacy for those who are incarcerated. I just
wish I would have heard it be this loud and this big push for
it when we were talking about mostly Black and Brown people,
but I'll move on.
As the Congresswoman from Missouri's first district I have
heard from my constituents behind the wall, many of whom have
shared their horrifying experiences of unsafe, unsanitary, and
inhumane conditions while incarcerated before and during COVID.
From traumatic lock-downs to being denied visitation for months
on end, this pandemic has laid bare the extreme violence
inherent in our prison system.
For three years this pandemic has deprived thousands of
people in our Federal prisons and jails of their health and
well-being. More than one in five federally-incarcerated people
have been affected with COVID-19 and at least 279 people have
died. Our prisons are a petri dish for infectious disease
outbreaks and the Bureau's policy to release thousands into
home confinement under the CARES Act has reunited families and
it has saved lives.
Ms. Levi, thank you for your powerful advocacy for home
confinement. Can you talk to us about your experience since
being home under supervision and about the psychological impact
of being sent back to jail in June of last year while you were
attending computer class during your home confinement?
Ms. Levi. I really think this might have been the first
time that I've even addressed the psychological impact. You
come home, you have expectations. You're reuniting with your
family, getting yourself back together, doing things that just
show your self-worth, show your community, show your family
that you're a changed person, that you're not the same person
who went into prison 16 years beforehand. That's your dream.
That's your hope. That's your prayer, that they can see who you
are now.
So, that's what I began to do. I began to advocate. I began
working with organizations that had helped me while I was
inside, I connected with those organizations. I tried to make
sure if there was anything I could do to speak out and let them
know what my prison experience was like and what I thought was
needed.
One of the things you are talking about today is the lack
of re-entry. I took that computer class because coming home at
the--at the halfway house I was refused--there were 100
computers in that halfway house. I was refused to go back there
to use any one of them. Those are the kinds of things that are
happening to people who are on home confinement. Those are the
kind of things that are lacking in the re-entry process with us
coming out, using the phone, those kinds of things.
The psychological effect of being sent back, I weigh 169
pounds. I now weigh 138 pounds. Just those 21 days back inside,
it's devastating. It's devastating, especially when you know
that you were doing all the rights things. Like I said, I'm not
just talking about me. There are thousands of people who that
threat--
Ms. Bush. That is right. That is right. That is what we're
talking about.
Ms. Levi. --there are thousands of people who that's still
over their heads, that home confinement--
Ms. Bush. Right.
Ms. Levi. --that monitor is on their ankle and it doesn't
work right all the time.
Ms. Bush. Well, let me add--
Ms. Levi. --whatever you all can do, whatever you all can
do towards making compassionate release more effective, more
efficient.
Ms. Bush. Right. Well, that is our duty as lawmakers. That
is our duty to represent, and it is imperative that we
prioritize the public health and safety of all people, not just
those that agree with us politically. In society with more than
140,000 people in Federal custody, this is the only way to do
it, we have to be decarcerate, we have to grant clemency and
move people out of prisons and jails and back home to be with
their families and in their communities.
I ask for unanimous consent to enter into the record a
letter that Congresswoman Watson Coleman and I led today
seeking clarification from BOP on the implementation of the new
OLC guidance for those on home confinement pursuant to the
CARES Act.
Ms. Jackson Lee. Without objection, so ordered.
[The information follows:]
MS. BUSH FOR THE RECORD
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[GRAPHICS NOT AVAILABLE IN TIFF FORMAT]
Ms. Bush. Thank you, Chair. I also ask for unanimous
consent to enter into the record testimony from Wendy Heckman
and Deantha D. Brooks on the challenges of home confinement
conditions in Federal facilities and earned time credit.
Ms. Jackson Lee. Without objection, so ordered.
[The information follows:]
MS. BUSH FOR THE RECORD
=======================================================================
[GRAPHICS NOT AVAILABLE IN TIFF FORMAT]
Ms. Bush. Thank you, Chair. We must not close our eyes to
the tragic circumstances behind prison walls and we must not
turn our backs on those who have been released to home
confinement who are still living with uncertainty about whether
they will be able to stay home. Thank you so much and I yield
back.
Ms. Jackson Lee. Thank you. The gentlelady's time has
expired.
I am pleased now to represent and to recognize the
gentleman, Mr. Massie, for five minutes.
You are recognized.
Mr. Massie. Can you hear my microphone now, Madam Chair?
Ms. Jackson Lee. We can hear you better. Thank you so very
much.
Mr. Massie. Okay. Thank you. I would rather have a cold mic
than a hot mic any day, but glad that we have this working.
Ms. Goodwin, Congress appropriated I believe $300 million
for the Bureau of Prisons to deal with COVID. Can you tell us
how this money has been spent?
Ms. Goodwin. We actually have been in the process of trying
to examine all of that. We've submitted some requests to BOP to
kind of ask for a layout, a detailed listing of what those
monies have gone to. What I will do, Congressman, I will circle
back to you.
Mr. Massie. Okay.
Ms. Goodwin. I'll get back to you. I'll connect with your
staff, and I'll get back to you on that.
Mr. Massie. Appreciate that. When you look into it, see if
they bought some walk-through FDA-approved COVID killers and if
those are working, because I think some of that money have been
spent on things that didn't work out. One concern that I also
had is an understaffed jail is a dangerous jail. Same for a
prison. Congress funds a certain number of correctional
officers every year. Can you tell us whether they have
recruited and retained the number of correctional officers that
Congress has funded?
Ms. Goodwin. So, first, in terms of the funding that they
have and things that they purchase, I want to go back. I mean,
we know that they purchased masks and other supplies.
Mr. Massie. Yes.
Ms. Goodwin. The other stuff I will certainly circle back
to you because we have a request out for that information.
Second, in terms of recruiting, hiring, and retaining, that
came up when we were doing the BOP staffing report. They have
started to recruit--they have started to recruit additional
officers. What we don't know because that report was about a
year or two ago is how successful they've been and particularly
if they've been successful in this era of COVID. What I can do,
Congressman, I can circle back to you on that as well. I can
reach out to BOP to see what information we can get for you.
Mr. Massie. Okay. Thank you very much. Also, I would like
you to look into reports that I received from officers,
correctional officers that when they identify COVID-positive
inmates they walk them through the compound, thereby possibly
exposing everybody else and then sending them to isolation
units. They may not be getting--that may not be the best idea
to walk a bunch of sick men together and to walk them through
the facility and around the facility in the process of doing
that. Could you look into that and see if that has been the
policy at some of these correctional facilities?
Ms. Goodwin. We could certainly look into that. I will tell
you that when we were doing the BOP COVID work, and we spoke
with union officials and others representing the officers and
that was one of the concerns. I will certainly see what we can
find out for you.
Mr. Massie. Thank you very much.
I want to take a little bit of time and point out that the
officers that work in these correctional facilities have a
vaccine mandate, yet the inmates do not. The irony here is that
the inmates have more rights than the officers themselves.
There are correctional officers and staff in a facility in my
congressional district who applied and were just categorically
denied medical exemptions. Nobody has been granted a medical
exemption. They were able to receive, 52 of them, religious
exemptions, and 4,495 staff at the BOP have received religious
exemptions, but I think it is a shame that we have to apply for
religious exemptions when what they want is a medical
exemption.
We have failed to recognize natural immunity and I am going
to submit to the record something that just came out from the
CDC. It is dated January 19, ``COVID Cases and Hospitalizations
by COVID-19 Vaccination Status and Previous COVID-19
Diagnosis.'' What it shows is that prior COVID infection was
more protective than vaccination during the delta surge, yet
the guards aren't having their prior infection immunity
recognized. So, I think that is a problem.
I would like to submit to the record, Madam Chair, the
MMR--MMWR Report from CDC showing that natural immunity was
better than the vaccine. Then, also, a Reuters article that
highlights that.
Ms. Jackson Lee. Without objection, so ordered.
[The information follows:]
MR. MASSIE FOR THE RECORD
=======================================================================
[GRAPHICS NOT AVAILABLE IN TIFF FORMAT]
Ms. Goodwin. Congressman Massie--
Ms. Jackson Lee. The gentleman's time--
Ms. Goodwin. Oh, is his time expired?
Ms. Jackson Lee. Yes.
Ms. Goodwin. I did have one more thing. When we spoke to
the union officials, we didn't hear anything about them walking
inmates through the--sick inmates through the compounds. We did
hear concerns about just having a large number of sick people
in any one location.
Mr. Massie. Right. Okay. Thank you very much. That is what
I am hearing, too.
Madam Chair, I hope that we do get correctional officers in
the next hearing because we want to hear from the front line
what is really happening.
Ms. Jackson Lee. The gentleman's time is expired.
Thank you so very much, Mr. Massie.
I am pleased now to thank him for his service and to
recognize Mr. Cicilline of Rhode Island for five minutes.
You are recognized.
Mr. Cicilline. Thank you, Madam Chair, for holding this
really important and very timely hearing.
I want to first say that we have heard a lot about violent
crime and smash and grabs, and we of course have all condemned
that. I just wish we heard the same enthusiasm about the
importance of prosecuting the smash and grabs and the violence
that occurred on January 6.
We are also hearing lots of concerns from our Republican
colleagues about conditions for those in confinement. That is
welcome news. There are many of us who have been worried about
that particularly for communities of color for a very long
time. It is good to have some of our Republican colleagues now
so concerned about that and we welcome their newfound
enthusiasm or interest in this area.
The suggestion though that this compassionate release or
early home confinement is releasing criminals into the
community, the Bureau of Prisons director testified in the
Senate in April that 24,000 people were transferred to home
confinement and only 3 were arrested for new crimes. These
individuals by and large reintegrated into the community
successfully.
What I want to focus on is what the purpose of this hearing
is, and that is the effect of this pandemic on incarcerated
individuals. We get to make decisions to mitigate the risk of
COVID by vaccinating ourselves, wearing protective masks,
staying six feet away from each other, getting tested. Those
same practices are not available very often to those who are
incarcerated.
So, while I welcome the news of Attorney General Garland to
reverse the Trump era legal opinion that the Bureau of Prisons
now has the option to allow inmates to remain on home
confinement to avoid risk of COVID, Dr. Venters, I want to ask
what should the Bureau of Prisons be doing today to reduce the
spread of COVID-19 or the other strains and also in their
treatment of individuals who test positive?
Dr. Venters. I think one of the most pressing issues is to
find and protect people who are high risk. Omicron particularly
moves so quickly through facilities, the congregate settings.
All these places know or have the capacity to know who is high
risk, that's who either is unvaccinated or meets the CDC
criteria for higher risk of illness or death. We need to
protect those people and it means that we prioritize them for
vaccination. We don't just offer a whole housing area a
vaccination; take it or leave it. We find those high-risk
people. We talk to them, engage with, because they have lots
and lots of questions about the vaccine, legitimate questions.
Every one of those people vaccinated is a potential life save.
Then when COVID, if and when it hits, when people are in
quarantine because they've been exposed, we need to find those
high-risk people every day and check on them for symptoms. The
CDC has said let's do this for everybody since the outset of
the pandemic. When I get into facilities, I find nobody's
actually asking people about new symptoms of COVID during
quarantine. Those high-risk folks, we can save their lives if
we find their symptoms early.
Then finally when they get into medical isolation, if and
when they have COVID themselves, we need to have a lower
threshold for sending them to the hospital or just having a
nurse call a doctor if it's a high-risk person. So, a pulse
rate of 92 in a person with diabetes or who's 85, or both, is
probably more concerning than a pulse rate of 105 in a young
healthy person. We need to think about that.
Mr. Cicilline. Thank you. I want to try to just get in one
more question. Thank you for that.
Ms. Guernsey, thank you for all the work that you have
done. You have concluded that 280 people have died from COVID-
19 in the Federal Bureau of Prisons and your research has shown
that of the 260 deaths that you were able to track just 70 had
filed a motion for compassionate release with the federal
courts and 3 of those motions were granted.
Based on your research is the Bureau of Prisons
compassionate release process being adequately utilized for
individuals suffering from COVID-19 or at risk of COVID-19?
What should the BOP be doing better to address that?
Finally, I have a piece of legislation that will also allow
the court to grant compassionate release directly. Would that
be helpful in this context as well?
Ms. Guernsey. Yes, so those three people whose motions were
granted, those are just the three motions that were granted of
people who ultimately died. We know that Federal courts have
granted around 3,000 compassionate release motions generally.
Those are 3,000 people who certainly wouldn't have died in
Bureau of Prisons custody because they had been released.
I do think that looking at just those three motions isn't
accurate. We know at least of the 297 people that have died
and--at least 297 people that have died in Bureau of Prisons
custody who have petitioned for compassionate release or asked
the court for relief we can't actually identify what they've
done in the Bureau of Prisons because the Bureau of Prisons
doesn't provide that data. It's very difficult to judge from
the data that we have for the Federal courts what's truly
happening in the Federal Bureau of Prisons. I think again
getting that data.
Again, a piece of legislation that allows people to
petition directly to the courts would be a step forward, but I
also think it's imperfect just because of the discretion vested
with the Federal judiciary and compassion fatigue.
Mr. Cicilline. Thank you.
Madam Chair, before I yield back I just want to acknowledge
the extraordinary testimony of Ms. Levi and thank you for
sharing your story and the powerful words you gave to this
Committee. I yield back.
Ms. Jackson Lee. Thank you, Mr. Cicilline. Your time is
expired.
Has anyone else come on.
Thank you, Cicilline.
Do you have any Members that have come on that we should
recognize at this time?
Mr. Biggs. Madam Chair, I do not see any additional
Republicans who have come on to ask questions, so yield it back
to you.
Ms. Jackson Lee. All right. Let me know, please. Thank you
so very much.
I am pleased now to represent the gentleman from California
Representative Service and to recognize him for five minutes.
Mr. Correa. You are recognized for five minutes.
We will come back to him.
I am pleased now to recognize, thank her for her service,
the gentlelady from Texas, Ms. Escobar.
You are recognized. Ms. Escobar. Thank you, Madam Chair,
for holding this very important hearing and to the recent
practices of the Bureau of Prisons around addressing the needs
of inmates during the COVID-19 pandemic and the Bureau of
Prisons' compliance with the First Step Act.
I do want to echo my gratitude not just for all the
panelists, but especially for Ms. Levi, as Mr. Cicilline just
pointed out. I am so grateful that you are here sharing your
story with all of America. Thank you.
Our prison system has long failed to recognize the dignity
of incarcerated people, the majority of whom are Black and
Brown.
This morning we heard the minority Witness and our friends
on the other side of the aisle lamenting the treatment of those
incarcerated for the January 6 terrorist attack against our
country. Mr. Jordan mentioned that he is, quote, ``concerned
about compassion and due process.'' I am so glad to hear that.
The minority Witness and my Republican colleague's concerns
include a list of things: A delay in hearings, their belief
that there is a lack of due process, claims of abuse, and the
fact that some of the individuals they are fighting for don't
have a criminal record or their charges are misdemeanors.
I want to just note here that the concerns that they have
articulated are exactly the same concerns many of us have been
expressing about migrants in ICE custody. Lack of due process
claims of abuse, lack of a prior criminal record, and lengthy
incarceration on civil charges. It is truly my hope that their
concern about compassion and due process will be extended to
the migrant population in our custody as well. One day, I hope.
In the summer of 2020 when a majority of Americans were
working and learning from home to avoid spreading or
contracting coronavirus, prisons and ICE facilities were the
site of rapid unmitigated spread among staff and those
incarcerated, and unfortunately instead of embracing the
allowances the CARES Act made for home confinement, many Bureau
of Prisons facilities attempted to contain the spread of COVID-
19 with lock-downs and heavy reliance on solitary confinement,
a psychological harmful tactic that prisons have historically
employed as punishment. Those decisions cost lives, not just
the lives of 277 incarcerated people, but the lives of 7 staff
Members as well.
So, again, Madam Chair, thank you for this opportunity to
discuss how Congress can Act and how we can do better in our
country.
Mr. Venters, in your statement you mention that your
investigations have not just included the Bureau of Prisons,
but you mention that your investigations have covered ICE
detention facilities as well. Do you see similar problems with
ICE detention as you have within the Bureau of Prisons? Lack of
oversight, the need for independent health authority, et
cetera?
Dr. Venters. Yes, I think that in the micro sense some of
the same failings about finding and protecting high-risk people
are apparent, but the larger problem, the problem that will
persist unless we address it is that there is no independent
oversight of the quality of health care in these settings. We
must have that, otherwise we're going to get the same outcomes:
Preventable deaths, over and over.
Ms. Escobar. You are absolutely right. I will give you just
a quick example of the desperate need for that independent
health care oversight not just during COVID, but preceding
COVID. One example is that we had a number of ICE detainees in
the El Paso facility who went on a hunger strike. Then as their
health deteriorated the same doctor that was overseeing their
care then ordered that they be force fed, tied down and force
fed against their will. Then it was that same physician who was
given the authority to check on their health even after the
forced feeding and after the decline in their mental health as
well. I called for an independent review, independent
oversight, and that is really critical.
Can you articulate why across the board in detention we
need that independence?
Dr. Venters. Certainly. I mean we accept this as a core
requirement in every other aspect of health care in the United
States if you go to a dialysis center, if you go to a clinic, a
hospital. We understand that you don't let the hospital decide
if they did a good job or a bad job with your surgery or with
your X-ray. We need to use the skills of quality assurance,
quality improvement, and independence in figuring out whether
or not health care is adequate.
For some reason, for a lot of reasons we all know that are
complicated for decades we've decided to carve out health care
behind bars and say we're going to let sheriffs, commissioners
of corrections, people who run these boxes we put people in--
we'll let them decide if it's good enough and if it's the
appropriate scope of services.
We get what we should expect, which is lots of jail and
prison attributable deaths because we don't have independent
oversight.
Ms. Escobar. Thank you so much, Mr. Venters, and to all our
panelists.
Thank you, Madam Chair. I yield back.
Ms. Jackson Lee. Thank you so very much for your
questioning and thank you for raising ICE. I think we know that
we have seen some terrible articles recently on the conditions
there and I think we will be--from the perspective of detention
facilities be looking at that. Again thank you.
Let me say I am pleased now to recognize another well-
serving Member, and that is Mr. Cohen of Tennessee for five
minutes.
Mr. Cohen. Thank you, Madam Chair, and thank you for
holding this important hearing. I am disappointed the Bureau of
Prisons isn't with us. I know they will be at some time in the
future.
We had a head of the Bureau of Prisons who I don't think
did is job very well and it is unfortunate that one of the best
things that President Trump did--he certainly was responsible
greatly for getting the vaccines available with Warp Speed; and
that was something to his credit, but he also got this bill
passed, he with the work of Mr. Kushner, and Hakeem Jeffries,
and others. It is an important bill and I wish that his
Administration as head of the Bureau of Prisons would have
tried to implement it, but he didn't. Hopefully the Biden
Administration will.
There is an individual I have been in touch with, Michael
Cohen, who was an attorney for Mr. Trump, who has been
incarcerated. He still has certain limitations as he has got on
parole, guess. Those could be conditions of restrictions on his
liberty could be removed if they completed the Fresh Start Act
and gave him the credit that he deserves for the time he has
spent in prison as really a political prisoner because what he
did was just facilitate Mr. Trump's work with Stormy Daniels.
The individual, one has not been punished, but Michael Cohen
should get his credits and hopefully the Biden Administration
will see that everybody that should get their credits get them.
Ms. Levi, you brought up the fact that there is nobody in
the system that is supposed to work on compassionate release
except you just make your application to the Warden. Do you
think there should be an individual other than the warden in
the system, like an ombudsman who looks over the prison
population and tries to make recommendations of those people
who should qualify for compassionate release?
Ms. Levi. I certainly do. I think some of the--not just
compassionate release. The clemency process also, but
compassionate release, yes. Leaving just to the warden--in my
case my warden denied me. No, I'm sorry. In my case my warden
took over 30 days and I was able to avail myself of that
privilege since she didn't respond in 30 days, I was able to
put an application in for compassionate release on my own
through my attorney on the 31st days, which subsequently was
denied.
Yes, there should be an ombudsman. There should be maybe a
Committee or a council or whatever. I don't know what you all
want to call it, but there should be somebody besides the
warden in that institution or outside the institution who would
oversee those people who we already know qualify and have been
vetted and everything. They qualify for the compassionate
release, but it's just not being processed. It's just not.
Mr. Cohen. Thank you, Ms. Levi. I am sorry about what
happened with you, but I am happy you are out, and I appreciate
your testifying. I know that the Chair will look into that. I
hope that if she does look into it, and I am sure she will,
with the staff, that I would like to work with her on that.
I have been an advocate for compassionate release for a
decade, at least, and oftentimes it was--it was not just COVID;
it was people who were--had been incarcerated for a long time
and were old as they could be. They didn't have the physical
ability to commit a crime anymore and yet they are still being
incarcerated. Those people should be released for compassionate
reasons and for economic reasons because there is no reason for
us to be housing those people. So, that is something we need to
do.
Ms. Goodwin, what implications do these failings in the
Bureau of Prisons that they haven't implemented the First Step
Act have for those in Federal custody and what lessons should
current Administration fund?
Ms. Goodwin. Thank you, Congressman. The work that we are
currently doing: Looking at inmates' needs and risk assessment
and how the Bureau of Prisons is implementing that particular
requirement under the First Step Act. That work is ongoing. As
we get closer to having, preliminary findings or anything, my
team, we can certainly circle back to you to share some of that
information, but for us right now the work that we have is too
early for me to be able to provide some substantive data or
information.
Mr. Cohen. Well, thank you. Hopefully the Biden
Administration will appoint a progressive-minded head of the
Bureau of Prisons so that we don't have problems such as we had
with this past chief who didn't do his job and let the First
Step Act languish.
Ms. Guernsey, what role can the Bureau of Prisons play in
criminal justice reform particularly given the authorities it
has under the CARES Act and the First Step Act?
Ms. Guernsey. Well, I think those two things are exactly
right. They have two really important tools for decarceration
and we know that decarceration is good for penalogical purposes
and public health purposes. So more standardized processes and
procedures for compassionate release and expanded use of both
compassionate release and CARES Act home confinement are
incredibly important for us to move forward past an era of mass
incarceration.
Mr. Cohen. I want to thank everybody on--all the Witnesses
for testifying and I want to--it has been wonderful listening
to my Republican colleagues, a byproduct of January 6 is we
have got some new allies in trying to get prison reforms.
Strange friends through strange conditions and things work in
mysterious ways.
I yield back the balance of my time.
Ms. Jackson Lee. I thank the gentleman as the gentleman's
time is expired and I hear a strike for unity. Thank you all
very much.
I am going to express my appreciation to Mr. Nadler, Ms.
Bass, Ms. Demings, Ms. McBath, Dean, Scanlon, Bush, Mr.
Cicilline, Escobar, and Cohen. Thank you so very much. Likewise
express my appreciation to Mr. Biggs, Chabot, Gohmert, Steube,
Tiffany, Massie and Jordan. I think Mr. Gohmert was not on, but
we thank him.
Let me also express my appreciation to Dr. Venters, Ms.
Guernsey, Ms. Levi, and Dr. Hamilton, Ms. Goodwin, Dr. Goodwin,
and Ms. Kelly. Let me thank you very much.
I am going to, if I might Members, yield myself a few
minutes for two Witnesses.
Mr. Biggs, I didn't know if you had any matter that you
wanted to address. I am going to yield to you if you have a
matter that you want to address as we close. Mr. Biggs?
Mr. Biggs. Thank you, Madam Chair. I just wanted to again
thank all the Witnesses and I appreciate, and I want to just
comment on some specific things that are takeaways. Appreciate,
Ms. Levi, for your testimony. I think you really highlighted
some of the deficiencies that we have in our system. I think
that is critical that we hear firsthand the experiences that
you underwent and appreciate your willingness to share those
with us today, take time out.
Dr. Venter, I really appreciate your comments today and
your efforts and your work. Particularly, I think it is
critical that--not just within the prison system, but I think
generically we understood early on who were the most vulnerable
and who are at most high risk particularly in congregate
settings. I think you have further identified that today as a
system-wide failure to care for people who are particularly
vulnerable, and I appreciate that.
Ms. Guernsey, Professor Guernsey, I thank you too because I
think the idea of the COVID data within Bureau of Prisons and
other data that comes out--it is missing, or it is incomplete.
I think that is critical if we are going to study and see what
is going on and what needs to be fixed. Thank you very much for
that.
I am looking forward to getting a Bureau of Prisons
representative in, Madam Chair, to testify to us. Appreciate--
is it Professor Goodwin? Or Dr. Goodwin?
Ms. Goodwin. Dr. Goodwin.
Mr. Biggs. Dr. Goodwin? Okay. I am sorry. Appreciate your
comments with regard to best policies and practices,
particularly by internal communications within BOP and its
failures. Sometimes the water doesn't get to the end of the
row, those of us out here in the land of irrigation. Sometimes
the water doesn't get to the end of the row, and I think it
needs improved communication. Thank you.
Ms. Hamilton, thank you as well. A startling statistic that
you laid out was that 11 percent have wrongfully assessed for
risk. I think that is critical. I would like more information
on that including the underlying independent variables.
Appreciate Ms. Kelly being here today and your thoughtful
work on the January 6 detainees and also the testimony that
indicates from some--at least from some Members that may be a
wider-spread problem than we knew about. That is critical as
well.
Just want to make a couple quick comments as well with
regard to the comment that there had not been universal
condemnation of violence on January 6. That is actually
inaccurate. I can't think of anybody who did not condemn the
violence of January 6. Indeed, all violence should be
condemned. I think sometimes the hyperbole gets in the way and
sometimes we politicize things that don't need to be
politicized, but violence is violence and should be condemned.
I would ask--Madam Chair, it was raised in here that the
Department of Justice was compelled by a court to investigate
what was going on in the D.C. Jail, and I would ask if we could
maybe follow up with a hearing on that. If not, then maybe you
and I could lead a letter to the Department of Justice asking
what the progress of that investigation in response to the
Federal judge is. I think that is important to know and we
continue to hold the DOJ accountable for what the Federal court
indicated.
I am also looking forward to finding data on the crimes and
compassionate release. Apparently, that is incomplete as well
and that is--we really need to get to the bottom of that, too.
So much came out of this hearing today. Thank you, Madam Chair.
Appreciate it and I yield back.
Ms. Jackson Lee. Thank you so very much, Ranking Member
Biggs, and thank you for specifically highlighting the great
insight that all our Witnesses gave.
Let me say to all our Members data is crucial. Many of you
know that the head of the Prison Bureau, Federal Prison Bureau
resigned, I would say hastily, about two weeks ago. But we are
never far away from the will of the Members, but also our
thoughts are already present in the thoughts that you have. We
will have a Bureau of Prisons hearing on February 3 with those
officials. Just think of the approach that we took, which is we
had an expansive fact-finding group of Witnesses that have
provided us enormous insight and we will rely upon their
testimony.
I, too, want to take just a quick moment. Dr. Goodwin,
thank you. The GAO is doing great work. We will probably engage
with you further as well as Attorney Bensy. Thank you for your
firsthand work that tells us that we should be concerned about
courts that have not been as friendly toward compassionate
release and we should look into all options and how that system
could work.
Dr. Hamilton as well, and the disparity, if you want to
explore that even more so that our First Step Act can work.
Dr. Venters and Ms. Levi, I am going to pose questions to
you that I did not and was not able to raise.
Ms. Kelly, thank you for your research and work. You can
see that you have been heard. Thank you again. I know many
asked you questions.
Ms. Levi, you are my personal hero because you have not
been silenced by your experience. Some would come out and be
embarrassed or hesitant to speak and I am grateful that you are
not. I also just want to follow up on the emotional tie, the
emotional tie that you have to those who are still there
because you know the conditions in the prison and then also the
emotional toll that still is on you.
You got out. You know that there are others, I would
assume, and I don't want to presume, but would you share that
there are others that could be eligible inside the Federal
Bureau of Prisons and are not being responded to? Would you
comment on that, please? Thank you so very much for not being
silenced about the conditions.
Ms. Levi, would you answer that, please?
Ms. Levi. Yes, I couldn't be silent. My friends I left
behind, the women and some guys that I corresponded with, you
cannot just forget. What I went through I know that they're
going through. They're continuing to go through.
I have friends who are at Carswell and Alderson and what
they're going through right now, the letters that they write
are--it's a sad tale that's being told. People talk about
people being locked down for two hours where in some prisons
they're not getting two hours out. They're getting a half an
hour to come out and have to use the phone, have showers, and
everything. It is just a sad situation that the people that
were left behind. I have to talk about them. I have to--I still
hear from them. They're my friends.
Ms. Jackson Lee. If I could very quickly ask you; I know
you don't make decisions, but would you comment on those who
are there who have made requests for compassionate release who
in your view are eligible and just being ignored or denied? Is
that happening?
Ms. Levi. Yes, it is. You have people who are sick, in
wheelchairs, who can't get around. One lady just told me about
that she--there's a towel around her whole face just so that
she can walk through during that one hour that she gets to use
the phone, that has an hour that she gets to use the phone.
They reduced their phone calls to five minutes. COVID is
devastating the emotional impact that it's having on people
inside. I mean, to be locked down like that knowing that you're
eligible, knowing that you fit the criteria, knowing that
you've submitted paperwork and the warden denies you. It gets
denied. Knowing that you know within your heart, your attorney
has told you fit the criteria. It's frustrating for me just to
see people who I know should be out still in.
I will continue to speak out. Emotionally, yes, it does
have an effect on you, but I think it gives you--
Ms. Jackson Lee. Thank you.
Ms. Levi. --more drive because you know the emotion that it
has on me, so I know what it has on the people that are still
inside.
Ms. Jackson Lee. Thank you so very much. You have done so
much for us in your testimony.
Dr. Venters, you really highlighted some crucial issues
regarding health care. I think we should understand that these
are still human beings, but in the Bureau of Prisons there are
medium and minimum facilities. There are people of all
categories that are incarcerated. Of course, there's maximum.
Can you comment on is there any standard criteria for which
doctors or nurses or health professionals are hired in the
Bureau? Is there consistency in quality or consistency in
numbers? Have you been able to determine that? Are those
deficiencies continuing or are those deficiencies contributing
to what you say are bad health conditions and a lack of
understanding of the impact of COVID and the high numbers of
COVID-19? Dr. Venters?
Dr. Venters. Yes, I think that--thank you. I think that
certainly there are problems recruiting staff all over, health
staff in both the BOP facilities and other carceral settings. I
think there are some very sound reasons why a lot of health
staff are reluctant to take these jobs. It's not just that
these are tough physical environments and it's really actually
not so much, in my experience as a doctor at Rikers, that we're
afraid of your patients. It's that these are places where we're
not sure we're going to be able to provide ethical care and
evidence-based care.
So, until and unless we establish independent oversight so
that a doctor, a nurse, a physical therapist knows that their
delivery of care comes from a line of power and a line of
authority that goes to a real health organization; it doesn't
just go up the chain to a security person, I think it will be
difficult to get the staff in that we want to fill those
positions. So, that's why I sound like a broken record over and
over about the need for independent oversight that comes from a
health authority, not from some other law enforcement agency.
Ms. Jackson Lee. Let me thank all of you so very much. This
hearing today will be an effective fact-finding basis for our
February 3 hearing and the Witnesses, each of you, have
contributed in your own way.
I do want to conclude my remarks and conclude this hearing
by adding to the record an article at Forbes: ``As COVID Cases
Spike, Federal Bureau of Prisons is Not Releasing Eligible
Inmates.'' Then the Justice and Policy Center ``Racial Equity
and Criminal Risk Assessment.'' Then a CNN article: ``This is
an Unmistakable Win for Incarcerated Persons,'' regarding the
DOJ reform dealing with the First Step Act.
[The information follows:]
MS. JACKSON LEE FOR THE RECORD
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Ms. Jackson Lee. So again, we are dealing with incarcerated
persons, but we are dealing with human beings and their
families. It is our responsibility and task as a Committee and
to be vigilant and diligent. I want to see complete reform of
our Federal prison system so that it meets society's needs of
incarcerating those who have certainly violated the law
inviolate, but also has a strong commitment to human dignity
and response, and as well rehabilitation. I don't think they
are mutually exclusive.
Thank you, Members, for contributing to today's hearing.
This concludes today's hearing.
Thank you again to our distinguished Witnesses for
attending.
Without objection, all Members have five legislative days
to submit additional written questions for the Witnesses or
additional materials for the record.
This hearing is adjourned. Have a good day. Thank you.
[Whereupon, at 12:56 p.m., the Subcommittee was adjourned.]
APPENDIX
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