The American Civil Liberties Union and partners on Wednesday filed a Freedom of Information Act lawsuit to compel three federal agencies to disclose records detailing how the government handled the coronavirus pandemic in prisons.
The ACLU, ACLU of the District of Columbia, Williams & Connolly LLP, and attorney David Sobel filed the suit (pdf) against the Department of Health and Human Services, the Department of Justice, and the Federal Bureau of Prisons, an agency under the DOJ. The complaint demands "the immediate release of improperly withheld agency records related to federal government's failed response to the spread of Covid-19 in prisons in jails."
"The lawsuit seeks to uncover critical information about the federal government's response—and lack thereof—to the coronavirus in detention facilities across the country," the ACLU said in a statement on Wednesday. "This includes lax guidance to state and federal facilities on critical issues like mask wearing and social distancing, as well as communications with the White House Coronavirus Task Force."
We submitted FOIA requests to the BOP, DOJ, and HHS in APRIL.
Since then, the Trump administration's failure to address the crisis has resulted in the death of thousands of people in detention facilities. Yet they continue to say there's nothing to see here.
— ACLU (@ACLU) October 21, 2020
Although the ACLU filed FOIA requests with the Bureau of Prisons, DOJ, and Centers for Disease Control and Prevention in April and July, "the agencies have failed to produce any records while publicly declaring victory over the virus," the ACLU said.
"The lawsuit also cites multiple instances of their dishonest and incompetent handling of the spread of Covid-19 in detention facilities," the group added. According to the ACLU, these include:
- Failing to make the BOP director and other DOJ officials available for a September House Judiciary Committee oversight hearing.
- Refusing to respond to the demands of elected officials who this month demanded information on Covid-19 response, citing "mounting evidence that efforts to contain the virus within BOP facilities are failing."
- BOP describing its response to the pandemic as "robust" despite a lawsuit brought by the federal corrections officers' union and the death of six men at FCI Oakdale.
The ACLU has already filed dozens of lawsuits demanding the release of the most vulnerable prisoners, who some critics say are being given what could amount to an extrajudicial death sentence. Indeed, the advocacy group Death Penalty Information Center notes that Covid-19 has killed more death row prisoners in California than the state has executed in the past 27 years.
Prison overcrowding, poor sanitary conditions, and high rates of chronic illness among U.S. prisoners are making it exceedingly difficult to contain and control Covid-19 outbreaks behind bars. According to the ACLU's Death by Incarceration Tracker (Google doc), more than 1,250 people in U.S. prisons and jails have died from Covid-19. In federal prisons, 128 inmates and three correctional staff have died from the disease.
An April ACLU report asserted the sheer number of inmates in U.S. prisons and jails—some 2.3 million people—was exacerbating the Covid-19 crisis. America's "obsession with incarceration has become our Achilles heel when it comes to combating Covid-19," the ACLU said.
In June, BOP Director Michael Carvajal presented a statement (pdf) to the Senate Juiciary Committee asserting the agency had implemented a "sound pandemic plan" and claiming that it "has taken, and will continue to take, aggressive steps to protect the safety and security of all staff and inmates, as well as members of the public."
Somil Trivedi, senior staff attorney with the ACLU's Criminal Law Reform Project, disagreed Wednesday, saying "it is grotesque enough that our federal government has failed to protect people in jails and prisons from Covid-19—people with lives, families, and constitutional rights, but they have also hidden that failed response from the public while claiming there's nothing to see here."
"This is sadly par for the course for a president who is hiding his own Covid-19 treatment," added Trivedi. "This is illegal, and we'll see the administration in court."