[Senate Hearing 117-763]
[From the U.S. Government Publishing Office]


                                                        S. Hrg. 117-763
 
                            OVERSIGHT OF THE
                       FEDERAL BUREAU OF PRISONS

=======================================================================

                                 HEARING

                               BEFORE THE

                       COMMITTEE ON THE JUDICIARY
                          UNITED STATES SENATE

                    ONE HUNDRED SEVENTEENTH CONGRESS

                             FIRST SESSION

                               __________

                             APRIL 15, 2021

                               __________

                           Serial No. J-117-9

                               __________

         Printed for the use of the Committee on the Judiciary
         
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                    STATEMENTS OF COMMITTEE MEMBERS

                   RICHARD J. DURBIN, Illinois, Chair
PATRICK J. LEAHY, Vermont            CHARLES E. GRASSLEY, Iowa, Ranking 
DIANNE FEINSTEIN, California             Member
SHELDON WHITEHOUSE, Rhode Island     LINDSEY O. GRAHAM, South Carolina
AMY KLOBUCHAR, Minnesota             JOHN CORNYN, Texas
CHRISTOPHER A. COONS, Delaware       MICHAEL S. LEE, Utah
RICHARD BLUMENTHAL, Connecticut      TED CRUZ, Texas
MAZIE K. HIRONO, Hawaii              BEN SASSE, Nebraska
CORY A. BOOKER, New Jersey           JOSH HAWLEY, Missouri
ALEX PADILLA, California             TOM COTTON, Arkansas
JON OSSOFF, Georgia                  JOHN KENNEDY, Louisiana
                                     THOM TILLIS, North Carolina
                                     MARSHA BLACKBURN, Tennessee
                 Joseph Zogby, Majority Staff Director
                Kolan L. Davis, Minority Staff Director
                            
                            C O N T E N T S

                              ----------                              

                       APRIL 15, 2021, 10:00 A.M.

                                                                   Page

Durbin, Hon. Richard J., a U.S. Senator from the State of 
  Illinois.......................................................     1
Grassley, Hon. Chuck, a U.S. Senator from the State of Iowa......     4

                               WITNESSES

Witness List.....................................................    44
Carvajal, Michael D., Director, Director, Federal Bureau of 
  Prisons, Washington, DC........................................     6
    prepared statement...........................................    45

                               QUESTIONS

Questions submitted to Michael D. Carvajal by:
    Senator Grassley.............................................    53
Questions submitted to Michael D. Carvajal by:
    Senator Feinstein............................................    56
Questions submitted to Michael D. Carvajal by:
    Senator Whitehouse...........................................    60
Questions submitted to Michael D. Carvajal by:
    Senator Klobuchar............................................    62
Questions submitted to Michael D. Carvajal by:
    Senator Blumenthal...........................................    63
Questions submitted to Michael D. Carvajal by:
    Senator Hirono...............................................    68
Questions submitted to Michael D. Carvajal by:
    Senator Booker...............................................    69
Questions submitted to Michael D. Carvajal by:
    Senator Cornyn...............................................    71
Questions submitted to Michael D. Carvajal by:
    Senator Lee..................................................    73
Questions submitted to Michael D. Carvajal by:
    Senator Cruz.................................................    76
Questions submitted to Michael D. Carvajal by:
    Senator Hawley...............................................    78
Questions submitted to Michael D. Carvajal by:
    Senator Kennedy..............................................    79
Questions submitted to Michael D. Carvajal by:
    Senator Tills................................................    80
Questions submitted to Michael D. Carvajal by:
    Senator Blackburn............................................    81

                                ANSWERS

Responses of Michael D. Carvajal to questions submitted by:
    Senator Durbin...............................................    82
    Senator Grassley.............................................    83
    Senator Blackburn............................................    90
    Senator Blumenthal...........................................    91
    Senator Booker...............................................   104
    Senator Cruz.................................................   108
    Senator Feinstein............................................   110
    Senator Hirono...............................................   120
    Senator Kennedy..............................................   122
    Senator Klobuchar............................................   123
    Senator Cornyn...............................................   125
    Senator Lee..................................................   129
    Senator Whitehouse...........................................   139

                MISCELLANEOUS SUBMISSIONS FOR THE RECORD

Testimony of Janos Marton Dream Corps Justice....................   146
Testimony of Clara LeBeau Senate Judiciary Testimony dated Arpil 
  15, 2021.......................................................   150
Testimony of Anita Alboagye-Agyeman, Assistant Federal Defender 
  and Alison K. Guemsey, Clinical Associate Professor dated Arpil 
  15, 2021.......................................................   152
Council of Prison Locals 33, Statement of Shane Fausey dated 
  Arpil 15, 2021.................................................   171
Drug Policy Alliance Statement dated April 12, 2021..............   175
FAMM (formerly Families Against Mandatory Minimums) Statement 
  dated April 14, 2021...........................................   179
Statement of Kevin A. Ring, FAMM President dated April 15, 2021..   180
Statements of Aaron Littman, Lauren Brinkley-Rubinstein and 
  Michele Deitch dated April 15, 2021............................   192
Justice Action Network Letter dated April 15, 2021...............   205
The Sentencing Project Letter dated April 15, 2021...............   209
Tzedek Association from Rabbi Moshe Margaretten, President, dated 
  April 15, 2021.................................................   212
Statement of Dr. Homer Venters, Clinical Associate Professor 
  dated April 14, 2021...........................................   226         
        
          
         OVERSIGHT OF THE FEDERAL BUREAU OF PRISONS

                              ----------                              


                        THURSDAY, APRIL 15, 2021

                                       U.S. Senate,
                                Committee on the Judiciary,
                                                    Washington, DC.
    The Committee met, pursuant to notice, at 10 a.m., in room 
SD-226, Dirksen Senate Office Building, Hon. Richard J. Durbin, 
Chairman of the Committee, presiding.
    Present: Senators Durbin [presiding], Feinstein, Klobuchar, 
Blumenthal, Booker, Padilla, Ossoff, Grassley, Cornyn, Lee, 
Cruz, Sasse, Hawley, Cotton, Tillis, and Blackburn.

  OPENING STATEMENT OF HON. RICHARD J. DURBIN, A U.S. SENATOR 
     FROM THE STATE OF ILLINOIS, CHAIRMAN OF THE COMMITTEE

    Chair Durbin. The hearing will come to order.
    Today, the Senate is holding its first oversight hearing of 
the Federal Bureau of Prisons, the first time since 2019. 
Director Carvajal, thanks for joining us.
    To start today's hearing, I would like to show a short 
video that offers a look behind bars for the more than 152,000 
people in our Nation's Federal prison system.
    [Video shown.]
    Chair Durbin. I might just add that I know Alton Mills, the 
gentleman who was just on the video here, sentenced to life in 
prison at age 23 for a nonviolent drug offense. He was released 
because of the work of this Committee and changes in the law 
that have taken place. I thank Senator Grassley for joining me 
in that effort. Senator Cornyn was part of it as well, and it 
was signed into law by President Trump. Alton Mills has a job. 
He has worked ever since he has gotten out of prison. He is 
reunited with his family. He is no threat to society. He is 
making a positive contribution.
    For years I have sought to address the injustices and 
challenges that impact the lives of incarcerated families along 
with the staff who are responsible, the men and women who go 
into these Federal prisons and work there. Their health and 
well-being is our concern certainly as much as if not more than 
the inmates.
    I have worked across the aisle, as I mentioned, with 
Senator Grassley to pass bipartisan legislation like the Fair 
Sentencing Act and the FIRST STEP Act to reform Federal 
sentencing laws and help inmates successfully return. I have 
held hearings on the conditions of confinement. I think some of 
the most memorable hearings of my life were in this room with 
those who had been held in virtual solitary confinement, some 
for as long as a decade. I have dealt with the issue of 
treating incarcerated individuals with mental illness. I think 
over and over again of the sheriff of Cook County, Tom Dart, 
who is a personal friend of mine, who says without any 
challenge from any side whatsoever, he runs in the Cook County 
Jail the largest mental health institution in the United 
States. Many of these prisoners are suffering from mental 
illness.
    We still have a lot of work to do. When the pandemic began, 
many of us feared that, barring immediate and decisive action, 
our Nation's prisons were headed for catastrophe. In March of 
last year, I joined Senator Grassley along with 12 of our 
colleagues in sending a bipartisan letter to Director Carvajal 
and the former Attorney General. In it we urged you to use your 
authority under the FIRST STEP Act to swiftly--swiftly transfer 
vulnerable inmates to home confinement. We sent that letter out 
of concern for the health and well-being of the inmates as well 
as 37,000 Americans working in our Federal prisons. At the time 
we sent the letter, only three inmates and three staff members 
had tested positive for COVID-19.
    What happened? In the months that followed, tens of 
thousands of Federal prisoners tested positive for COVID-19. At 
times the infection rate for the Federal prison population has 
been nearly six times higher than in the community at large. As 
a result, 230 incarcerated individuals at least have died from 
COVID-19, nearly all of whom had preexisting conditions that 
made them particularly and obviously vulnerable. Several were 
within months of being released, and 55 died after their 
request for compassionate release was denied and while the 
request was pending.
    One preventable death was noted in this video, Andrea High 
Bear, 8 months pregnant when a Bureau of Prisons official sent 
her to the Federal Medical Center in Carswell. She came down 
with COVID-19 and gave birth to her premature daughter while on 
a ventilator. Nearly a month later, Ms. High Bear died without 
ever getting a chance to hold her baby.
    Thousands of BOP staff members have also contracted COVID-
19. At least four have passed away, including Ruark "Mac" 
Macarthur, a 42-year-old correctional officer at the Federal 
penitentiary in Thompson, Illinois.
    These were preventable deaths. It is clear that the Bureau 
has been far too rigid in approving transfers to home 
confinement and compassionate release to reduce prison 
populations and to prevent the spread of COVID-19.
    Unfortunately, this is part of a broader pattern. The 
Bureau has failed to implement many of the FIRST STEP Act's 
reforms. Let me give you an example. The FIRST STEP Act 
required the Department of Justice and the Bureau of Prisons to 
develop a risk and needs assessment, but the PATTERN tool that 
the agencies created is deeply flawed. The Trump administration 
itself forecast that the tool would result in stunning racial 
disparities in inmate security classification.
    In December, the Independent Review Committee appointed by 
the Trump Justice Department released a report that found that 
the Bureau of Prisons has failed to develop, and I quote, "a 
fully integrated and comprehensive needs assessment system to 
diagnose the programming needs of individual inmates," a system 
the FIRST STEP Act requires you to develop. I might add that 
part of the FIRST STEP Act was constructed by Senator Cornyn 
and Senator Whitehouse on the prison reform side of the 
equation.
    The law also mandates that BOP provide all prisoners with 
opportunities to participate in programming to prepare them to 
return to their communities. However, many inmates still 
struggle to access programming to help vocational skills and 
receive mental health and other services.
    The simple fact of the matter is--and we know it--the 
majority of Federal prisoners today will be out in society at 
some point soon in their lives. We have to anticipate it. We 
want that to be a constructive positive experience and not 
create another crime victim.
    The legislation also requires inmates to participate in 
programming through earned time credits, but the Bureau of 
Prisons proposed rule for earned time credits severely limits 
the ability to earn these credits, and that undermines 
participation. The Bureau's failure to implement the FIRST STEP 
Act reforms speaks to a broader issue of mismanagement that has 
impacted everyone in our prison system, from the incarcerated 
to your own loyal employees. For years the Bureau of Prisons 
has been plagued by chronic understaffing. It has been worsened 
by the previous administration's decision in 2017 to implement 
a hiring freeze that led to the elimination of more than 6,000 
Bureau of Prisons positions. Today there are still thousands of 
vacant positions.
    To compensate for staff shortages, the Bureau has come to 
rely on widespread and often mandatory overtime as well as 
augmentation. Augmentation is a practice that forces 
noncustodial staff like secretaries, teachers, and librarians 
to work as correctional officers. The Council of Prison Locals, 
which represents most BOP employees, notes in testimony for the 
record today that, "The staffing crisis in the Bureau of 
Prisons not only creates a large clear and present danger to 
every employee, inmate, and the community at large, but has 
made the response to the COVID-19 pandemic nearly impossible. 
The Americans working in our prison system are overworked, 
overextended, and undersupported. As a result, incarcerated 
individuals and the communities to which they return are put at 
risk."
    Simply put, our prison system at the Federal level is 
failing. It is failing to fulfill its fundamental purpose: the 
rehabilitation of incarcerated individuals. As I said, most of 
the individuals are going to return to society. Instead of 
preparing them, we are failing them and failing the American 
people who want, of course, safety in our communities.
    Part of that failure includes the excessively punitive and 
unjust practices to maintain order in our prisons, practices 
like administrative separation or solitary confinement. 
Following my hearings in 2012 and 2014, there were significant 
reductions in the use of solitary confinement, but I am 
troubled that the number of Federal inmates in restrictive 
housing increased significantly over the last 4 years. I am 
gravely concerned that during the pandemic the Bureau has used 
extensive solitary confinement as a means to enforce social 
distancing. You just cannot separate people 23 hours a day 
without an impact on their mental health.
    This oversight hearing is an opportunity to get a clear 
accounting of what is going wrong in our Federal prisons and 
what we need to do to fix it. We can start by vaccinating our 
inmates in a timely manner, not only for their protection but 
the protection of all the men and women in the Federal 
employment who maintain these prisons. I am eager to hear about 
the Bureau's plans. When are we going to implement the FIRST 
STEP Act? How are we going to build on the reforms that we 
passed on a bipartisan basis, signed by President Trump? We 
cannot keep wasting valuable resources and taxpayer dollars to 
let people languish in prison. More than wasteful, it is 
inhumane.
    Too many lives have been lost, too many spirits broken by 
abuse and mistreatment, too many families torn apart.
    Let me turn to Senator Grassley.

STATEMENT OF HON. CHUCK GRASSLEY, A U.S. SENATOR FROM THE STATE 
                            OF IOWA

    Senator Grassley. Before I start my statement, I want to 
make two points.
    One would be to ask, without objection, for the record a 
statement by the National Association of Assistant U.S. 
Attorneys be included.
    Chair Durbin. Without objection, it will be.
    [The prepared statement appears as submission in the 
record.]
    Senator Grassley. Then you reminded me of something when 
you talked about Senator Cornyn's involvement in our FIRST STEP 
Act. You and I keep referring to your and my cooperation on it, 
but we have not forgotten--I know you have not--Senator Cornyn, 
Senator Lee, Senator Booker is here now, and I am----
    Chair Durbin. Senator Whitehouse.
    Senator Grassley. Yes, and I am probably leaving somebody 
out, but at least those. Then we have got to remember, when you 
and I were starting out with a small group of people on this, 
that when it finally passed, it passed 87-12. We wondered: 
Where did all this opposition come from for so long a period of 
time with such an overwhelming passage of our legislation? I 
make these points because too often you and I refer to each 
other, and neither one of us intends to leave out other people 
that cooperated.
    Chair Durbin. We should always mention those other people 
one time for sure.
    Senator Grassley. Yes. No more than one time, right?
    [Laughter.]
    Senator Grassley. Okay. Let us go to Director Carvajal. We 
welcome you. We thank you for being here. I look forward to 
your answers to the Committee's questions as the issues before 
us are very extremely important.
    The Committee last held an oversight hearing with the 
Bureau of Prisons in 2019. That was pre-COVID and before the 
first anniversary of the FIRST STEP Act, and obviously, as 
Senator Durbin has said, a lot has changed. It is about time 
that we dig in and discuss these issues.
    In December 2018, President Trump signed the FIRST STEP 
Act. Getting the FIRST STEP Act passed was a very difficult 
effort, as I have already referred to. It required buy-in from 
nearly all Members of Congress, the White House, the Federal 
agencies, including your agency. Chairman Durbin and I teamed 
up to get the FIRST STEP Act passed 2 and 1/2 years ago, and I 
am grateful for the continued collaboration that I have with 
the Chairman, working together. I consider the passage of the 
FIRST STEP Act as one of my good things that I have done since 
being a Senator.
    It is because of the hard work and overwhelming bipartisan 
nature of the FIRST STEP Act that I am disheartened with the 
lackluster implementation. It seems as though the Justice 
Department and, within that Department, the Bureau of Prisons 
are implementing the FIRST STEP Act as if they want it to fail. 
I hope this is not true, but actions speak louder than words, 
and the inaction of the Justice Department and the BOP on this 
I think paints a very difficult picture.
    I understand that the COVID-19 pandemic hijacked many of 
the implementation efforts, but your agency must do better and 
follow the law without excuse. An example of half-hearted 
implementation is the prison programming. Programming is 
critical for inmates. It prepares them to successfully reenter 
society and allows them to earn time credit toward their 
sentences. Without effective programming, inmates will leave 
prison unequipped and possibly prone to reoffend. But the 
agency has been slow to resume programs for prisoners in light 
of COVID-19 restrictions. The lack of programming is setting 
inmates up to fail.
    The Justice Department still has not issued a complete 
needs assessment tool as required by the act. The risk and 
needs assessment system is critical in evaluating inmates' 
individual recidivism risk and tailoring appropriate 
programming to combat those risks. Without complete needs 
assessment tools, the law is only partially fulfilled, so 
another failure of implementation.
    Last, a current Justice Department position on home 
confinement fails to comply with the spirit of the FIRST STEP 
Act. In March 2020, Attorney General Barr responded to calls by 
this Senator and Chairman Durbin to increase the use of 
authorities in the FIRST STEP Act to place inmates in home 
confinement to mitigate the risk of the virus spreading. 
Earlier this year, the Justice Department released a memo 
stating that when the pandemic ends, nearly 4,000 nonviolent 
inmates who are currently at home in confinement will be 
returned to the prisons' secure custody program. This means 
that almost 4,000 people who have abided by the terms of home 
confinement will be removed from their homes and returned to 
the facility. Obviously, if they can stay where they are, it is 
going to save the taxpayers a lot of money, and it would also 
help people who are not prone to reoffend and allows inmates to 
successfully reenter society as productive citizens.
    Mr. Director, I look forward to our discussion on how you 
can reexamine and prioritize this important legislation. We 
must also at this time discuss the Bureau of Prisons' response 
to the COVID-19 pandemic. As of April 14th, 230 Federal inmates 
and agency staff members died from COVID. People are 
incarcerated to pay their debts to society, but they should not 
have to pay with their lives.
    I urge you to use your position as Director to ensure that 
not one more life is lost from the virus, and I hope that this 
hearing allows us to look forward. I am encouraged by your 
optimism, Mr. Director, for the future of the Bureau of 
Prisons. Your job is difficult and often thankless, and I 
suppose I have not been very thanking to you in my remarks, but 
it is critically important for the job to get done. The weight 
of success of the FIRST STEP Act is on your shoulders, and your 
leadership will undoubtedly be critical in navigating Federal 
corrections in a post-virus world.
    Finally, I want to remind you that the Bureau of Prisons 
has responsibility to respond to all congressional inquiries, 
including those from the minority, in a timely and complete 
manner. I sent you a letter in March 2020, and it has been more 
than a year with no response, and that should be considered by 
everybody, including you, as unacceptable. When I was Chairman, 
I made the same point on behalf of my Democratic colleagues. 
That responsibility falls to you. The Justice Department and 
FBI seem to have a real problem with that responsibility. I 
strongly urge you to answer the letter. I look forward to 
working with you.
    Thank you, Mr. Chairman. Sorry I took so much time.
    Chair Durbin. No, that is just fine. Thank you very much, 
Senator Grassley.
    Let me tell you in today's hearing, after I introduce and 
swear in Director Carvajal, we will have 5-minute rounds of 
questions.
    I would say by way of introduction of the Director that 
Michael Carvajal began his career with the Bureau of Prisons as 
a correctional officer in Texas in 1992. In July 2016, he was 
promoted to Regional Director of the Northeast Region and 
became the Assistant Director for the Correctional Programs 
Division in 2018. Former Attorney General William Barr 
appointed him as BOP Director in February 2020.
    Director Carvajal, would you please stand to be sworn in? 
Do you affirm that the testimony you are about to give before 
the Committee will be the truth, the whole truth, and nothing 
but the truth, so help you God?
    Mr. Carvajal. I do.
    Chair Durbin. Let the record reflect that the Director 
answered in the affirmative. Please be my guest and make your 
opening statement.

 STATEMENT OF MICHAEL D. CARVAJAL, DIRECTOR, FEDERAL BUREAU OF 
                    PRISONS, WASHINGTON, DC.

    Mr. Carvajal. Thank you, and good morning, Chairman Durbin, 
Ranking Member Grassley----
    Chair Durbin. Could you check your microphone and maybe 
pull it a little closer? That is great. Thank you. There should 
be a red light there.
    Mr. Carvajal. Good morning, Chairman Durbin, Ranking Member 
Grassley, and other distinguished members of the Committee.
    It is my privilege to speak today on behalf of the 37,000 
Bureau of Prisons corrections professionals who work day in and 
day out to support our critical law enforcement mission. I am 
committed to ensuring that these dedicated men and women are 
guided by the core values of respect, integrity, correctional 
excellence, and courage.
    I appreciate this opportunity to discuss the Bureau's 
response to the pandemic along with our efforts to provide 
inmates with the necessary programming to return to the 
community and to their families. I have spent the majority of 
my professional life in career service to this agency. After 
serving in the United States Army, I joined the Bureau as a 
correctional officer and moved up through the ranks to my 
current position as Director. I care deeply about our work and 
the personal sacrifices the Bureau's law enforcement officers 
make and have made during the pandemic and, more importantly, 
our way forward.
    COVID numbers have dropped significantly across nearly all 
of our institutions, even as inmate movement has resumed and 
despite communities reopening. We are taking the steps to 
normalize operations in stages as safety and security permit, 
including inmate movement, food service, and ramping up 
programming. All of these efforts will have a positive impact 
on staff, inmates, and the Bureau operations.
    As we have throughout the pandemic, we continue to assess 
and adjust our operations as guidance evolves and, more 
importantly, to incorporate the lessons learned. In close 
coordination with the CDC and Federal Government's COVID-19 
vaccine therapeutics operation, we pursued an aggressive 
strategy to administer the vaccine. All staff have been offered 
the vaccine, and by mid-May we anticipate all inmates within 
our institutions have been provided the opportunity to be 
vaccinated.
    The Bureau has also assisted in administering the COVID-19 
vaccination to other DOJ personnel. We worked with the DOJ 
leadership in planning two vaccine clinics--one in Miami, one 
in New York--to assist the DEA, FBI, and other law enforcement 
components to receive the vaccination. Through these clinics, 
more than 1,100 law enforcement personnel were vaccinated. And 
while it has been an extraordinary year with many challenges, 
we continue to move forward and advance our priorities.
    There has been much discussion about the Bureau's staffing 
needs and the use of augmentation and overtime to accomplish 
our mission. We are committed to addressing these issues by 
increasing our staffing levels nationwide and retaining our 
staff.
    We initiated a hiring campaign focused solely on external 
hiring to maximize staffing levels, and we are using all 
available recruitment and retention incentives, marketing 
strategies, and social media to reach potential candidates.
    In the last calendar year, despite the pandemic, we hired 
3,800 staff. In the past 8 weeks, we have hired over 500 new 
staff into the agency. Our aggressive hiring initiatives, our 
use of incentives, along with a revised method for calculating 
bed capacity will provide clarity, transparency, and have a 
significant impact on our staffing efforts moving forward. Our 
staffing efforts are central to the successful implementation 
of the FIRST STEP Act.
    I am pleased to tell you that, despite the pandemic, we are 
on track to meet the requirements of the FIRST STEP Act. Staff 
positions allotted under the FIRST STEP Act have already been 
utilized to expand capacity in our female programs, our drug 
treatment, and vocational training. Other innovations are 
underway to enhance programs such as life skill laboratories to 
teach the skills to basic inmates with the greatest needs, 
provide STEM career technical education for female offenders, 
and modernizing our inmate education platform to include the 
use of tablets to make programming more accessible. We are 
committed to successful implementation of the FIRST STEP Act 
and its impact on reducing recidivism.
    Finally, a key priority we are squarely focused on is our 
work with the Government Accountability Office related to the 
management of staff and resources. In an effort to accelerate 
this work, I have established a cross-agency task force to 
develop an action plan to resolve the issues in a timely 
manner. Our work will focus on strengthening new programs and 
initiatives that will help inmates prepare for a successful 
return to the community. We are working to develop stronger 
data analytics platforms which will enhance monitoring and 
evaluation of our programs and spending. To this end, we are 
engaging external organizations to assist in assessing a broad 
range of operations to further these goals.
    On behalf of all the staff, we are working tirelessly to 
carry out our important mission. I thank you for the 
opportunity to speak with you today and for your continued 
support to move these priorities forward.
    Chairman Durbin, Ranking Member Grassley, and other 
distinguished members of the Committee, this concludes my 
statement.
    [The prepared statement of Mr. Carvajal appears as 
submission in the record.]
    Chair Durbin. Thanks, Director Carvajal.
    Last March, Senator Grassley and I, along with a bipartisan 
group of 12 additional Senators, wrote to you and to the 
Attorney General, William Barr, to express serious concerns 
about the health and well-being of prison staff and inmates. At 
the time the number of infected prisoners was reported to be 
three and staff another three. That was at the earliest, 
earliest stages of our realization that COVID-19 was a serious 
threat to the public health. It did not take a degree or Dr. 
Fauci's resume to realize that our prisons were particularly 
vulnerable because of so many people gathered in such a limited 
space.
    We know what happened as a result of it. We came up with 
the FIRST STEP Act and other policies which established the 
opportunity for home confinement and compassionate release to 
reduce overcrowding and to allow those prisoners who we 
perceived not to be a threat to society to have a chance to 
leave that prison setting.
    Let me tell you a story of one of those prisoners. Forbes 
Magazine reported on a man named Jimmy Monk. Jimmy Monk was a 
young man, a first-time offender. He was convicted of a 
nonviolent bank fraud offense. His term in prison was less than 
a year. He collapsed in the shower and died from COVID-19 at 
the minimum security Talladega Federal Prison Camp. The Bureau 
of Prisons reports he had no COVID-19 symptoms, but his emails 
home and reports from those inside the prison tell a much 
different story.
    The reality was that he had multiple symptoms and received 
no medical attention. After he passed out in the shower, his 
fellow inmates rushed to help him, but the guards ordered them 
to leave him. Unable to even sit in a chair without the help of 
others, he fell, hit his head, and died on the floor.
    Why was a man like Jimmy Monk, a first-time offender 
convicted of a nonviolent bank fraud offense with less than a 
year to serve, not placed in home confinement? Were you given 
orders from above in terms of compassionate release and home 
confinement to restrict the number of opportunities that would 
be offered?
    Mr. Carvajal. No, Chairman Durbin, I was not given any 
direction like that. On the contrary, I was issued two 
memorandums by the Attorney General that directed us to 
consider under the CARES Act everyone eligible for home 
confinement. In those memorandums was specific guidance for 
criteria. I assure you that if that individual you are speaking 
about--I will not speak about individual cases, but, in 
general, any inmate that is eligible under the criteria 
presented to me by the Attorney General is on home confinement 
as we speak.
    What keeps them or prevents most cases are that they fall 
under one of those nondiscretionary hard criteria. If you have 
a primary offense of violence, a sex offense, terrorism, or a 
detainer, an order for deportation, you will not be placed on 
home confinement. As the statute is written, home confinement 
was not made for long-term placement. It is a reentry program. 
As you are well aware, Senator, 6 months, 10 percent of your 
sentence, 12 months in the community. At this point in time we 
have released inmates under the CARES Act with more time than 
that, which is appropriate. But that is why the criteria is 
important. We follow the criteria, Senator.
    Chair Durbin. What is the population--I mean, no one is 
going to argue with the groups that you have excluded from 
consideration for compassionate release and home confinement. 
What is the remaining population that does not fit into those 
categories among Bureau of Prisons inmates?
    Mr. Carvajal. Let me give you an example, Senator. When the 
CARES Act passed, we ran a roster. CARES Act is a medical 
placement. We ran a roster. At that point, at that day, there 
were approximately 27,000 inmates eligible for home confinement 
under the CARES Act. When we applied that criteria, that number 
was reduced to 4,000 just by those four criteria--okay?--and 
the other. We had discretion to go beyond that.
    Chair Durbin. Excuse me. Can you clarify? You said 27,000 
out of the total Federal prison population?
    Mr. Carvajal. Who had at least one COVID risk factor, which 
is what specifically the CARES Act told us to look at, inmates 
who were vulnerable for COVID.
    Chair Durbin. If you could clarify, please. The total 
Federal Bureau of Prisons population at the time was over 
150,000?
    Mr. Carvajal. That is correct.
    Chair Durbin. So you identified some 27,000----
    Mr. Carvajal. Who had at least one COVID risk factor.
    Chair Durbin. Of those, you excluded many for the 
categories you mentioned of crimes----
    Mr. Carvajal. We followed the criteria issued by the 
Director Attorney General at the time.
    Chair Durbin. You said there were 4,000 eligible in the 
Federal Bureau of Prisons?
    Mr. Carvajal. The 4,000 was after applying the Attorney 
General criteria. If you like, I can explain beyond that 
because----
    Chair Durbin. Let me ask you--I want to stick with the 
numbers for a minute. How many were actually released or placed 
in home confinement?
    Mr. Carvajal. We have released--transferred--because they 
are still in our custody. We have transferred over 24,000 
inmates to home confinement since passage of the CARES Act. 
Today there are approximately 7,400; 4,500 of those--I am using 
estimates because these numbers change every day. Approximately 
4,500 of those today are on CARES Act home confinement under 
specific CARES Act.
    Chair Durbin. It is my understanding that the prison 
staff--and I do not know how large a group that is completely. 
They have been offered vaccines, and fewer than one-half have 
accepted the invitation?
    Mr. Carvajal. Senator, we have offered every staff member 
in our agency the opportunity to be vaccinated. The rate right 
now, the last number I got yesterday, was a little bit over 51 
percent have accepted.
    The one caveat there is that that does not include staff 
that we are not aware of who received the vaccine on their own 
through their own care provider. We do know there are people 
that have done that. We have offered the vaccine. Approximately 
51 percent--that is about 18,000 staff of the 37,000--have 
accepted it.
    Chair Durbin. Is there currently a mask mandate for all 
staff at BOP facilities?
    Mr. Carvajal. Yes, there is, Senator. There has been for 
quite some time.
    Chair Durbin. What type of testing is offered to the staff?
    Mr. Carvajal. Staff testing is available--each location--
keep in mind, as you are well aware, we have 122 locations. We 
have a national contract laboratory where we can make it 
available, so there are several types and methods there. Each 
location worked with their local public health service to 
establish testing sites. We do not test staff onsite. We do not 
have the resources to do that.
    Chair Durbin. Could you tell me the percent of prisoners 
who have been vaccinated?
    Mr. Carvajal. The percentage this morning--we have 
administered over 132,000 vaccine--vaccinations. The percentage 
this morning was a little over 40 percent, about 50,000 or so 
inmates. Again, the numbers are changing. As I stated in my 
opening remarks, our projections originally were August for 
everybody to receive it. By mid-May, 100 percent of the inmates 
in our custody will have been offered the vaccine. Keeping in 
mind that it is voluntary, the acceptance rate among inmates is 
about 66 percent. Again, that changes daily sometimes.
    Chair Durbin. Those who are released, is there any testing 
before they are released?
    Mr. Carvajal. Inmates are quarantined, mandatory in and 
out, quarantined before they are released. If they have 
symptoms or anything of that nature, then we will provide the 
test upon release. Otherwise, they are mandatory quarantined, 
unless they are showing symptoms, at which time they are placed 
in isolation, which is a whole separate procedure.
    Chair Durbin. I am going to take leave as Chairman to ask 
one other question, Senator Grassley, if you do not mind.
    There was a lot of controversy and votes on the Senate 
floor about sending the checks, the stimulus checks, the 
$1,400, to inmates in prison. This was a policy that was 
originated in the CARES Act that was drawn up on a bipartisan 
basis and signed into law by President Trump. There have been 
questions raised about what happens to that money for inmates. 
Can you tell us what happens?
    Mr. Carvajal. Absolutely. It goes to the inmate. We 
processed right about 22,000 checks for about $19 million. We 
worked with the IRS, the Department of Justice Tax Division, 
and the Executive Office of the United States Attorneys to make 
sure that those inmates who were receiving those checks, that 
we worked through that and they received those checks.
    If for some reason, like with anything, if something occurs 
where somebody does--all they need to do is tell us. We do not 
know who is entitled to the check, but we have ensured that 
22,000 times inmates in our system have received those checks 
for a total of $19 million.
    Chair Durbin. Out of 150,000 inmates?
    Mr. Carvajal. Sir, I am not sure who is entitled to them. I 
do not have that information.
    Chair Durbin. I am just asking you.
    Mr. Carvajal. Yes, out of our current population of 
125,000.
    Chair Durbin. Isn't it true that money placed in a Federal 
inmate account that exceeds $450 during a 6-month period, 
including stimulus checks, for example, is assessed by the 
Bureau of Prisons to pay prisoner debts, including restitution 
to crime victims and fines?
    Mr. Carvajal. Senator, part of our policy and part of 
reentry is teaching responsibility. If an inmate has child 
support or owes a fine or restitution, that is part of his 
reentry plan, to be responsible and pay those debts. To my 
knowledge, the Government--we do not assess that. We do make 
sure that they participate in the program to pay restitution 
and things like that. There are those checks and balances, but 
we are not taking money from an inmate. There is a record of 
this. Everything is screened and gone through the policy as 
appropriate.
    Chair Durbin. I want to clarify this. If I am a prisoner 
and I have received a $1,400 stimulus check, it is my 
understanding that $950 of that could be assessed to pay any 
restitution or fines which I have been ordered by the court to 
pay. Is that true?
    Mr. Carvajal. I believe so, Senator. I am not entirely sure 
about the policy. I have not reviewed that policy lately. I am 
almost certain that if they have a financial responsibility, 
part of their reentry plan, part of getting them ready to 
return to society--95 percent of them will--is to be 
responsible and make their payments.
    Chair Durbin. Child support is the same type of 
responsibility?
    Mr. Carvajal. Child support, anything where there are 
obligations, that is part of being a responsible citizen and 
paying their bills.
    Chair Durbin. Thank you very much, Mr. Carvajal. Senator 
Grassley.
    Senator Grassley. You said in your statement that 
implementing the FIRST STEP Act is a priority for you and the 
current administration, and I hope it is, but I would like to 
know how we are supposed to know that. Is there some 
measurable--or goals that you are trying to meet that we can 
say 6 months from now or a year from now you are doing what you 
said you were going to do?
    Mr. Carvajal. That is a great question, Senator, and I 
wrote a lot of notes through both of your opening statements, 
and I hope I have the opportunity actually to answer these 
questions, because I am not sure where you get all your 
information, but I am glad you called me here to be able to 
answer this, because we are on track to meet the FIRST STEP 
Act. Last year, even through COVID, which is a whole other 
issue, as you well know, we had over 50,000 inmates enrolled in 
some type of program; 21,000, maybe 25,000 actually completed a 
program. Those programs are worth earning time credits, which 
is what the FIRST STEP Act is about. I am not sure who is 
giving you your information.
    Could it have been more? Absolutely. I do not know why 
someone would think that we would want something that is part 
of our mission--reentry into society is half of the mission of 
the Bureau of Prisons. The first one is the obvious one, 
keeping people safe. Yes, we want the FIRST STEP Act to be 
successful, Senator, and I appreciate you letting me clarify 
that.
    Senator Grassley. You would do me a favor if you went 
through my statement and told me what is wrong. Do not do it 
now, but you can do that in writing.
    I am disappointed in the progress that the Justice 
Department and Bureau of Prisons have made. We are all acutely 
aware of the impact that COVID-19 has had on prisons. At this 
point, over 1 year when President Trump declared COVID as a 
national emergency, I do not think that that national emergency 
can be used as a scapegoat. Being accountable and moving 
forward is necessary. I mentioned in my opening statement, 
which you might tell me again would be wrong, that it seems 
like the Justice Department and the Bureau of Prisons has 
failed in this effort. For it being the most significant 
criminal justice law in a generation, if that is true, what I 
have been saying, then it is shameful. I certainly hope that 
this sentiment is false, and even if it is not true, at certain 
points perception becomes a reality. If it is more an 
unreasonable perception, how can you assure me and those 
affected by the FIRST STEP Act that the implementation in this 
belief is incorrectly held?
    Mr. Carvajal. Thank you, Senator. First off, you mentioned 
the risk and needs assessment. That was implemented in January 
2020, right before COVID. I do not know why someone would think 
we do not have a risk and needs assessment. It is public 
knowledge. The IRC has acknowledged it. We worked with outside 
stakeholders to create this. We did not create the PATTERN 
tool. That is the Department of Justice's tool. It was done by 
independent researchers. It has been vetted. It is under 
reassessment now.
    We have a needs assessment. We have always done it 
informally. We did not do it very well and formalize it, but 
our process has been formalized now. We have identified--again, 
with the collaboration of outside stakeholders, including 
correctional experts from other agencies, we established a 
needs assessment. Thirteen needs were identified. When we go 
through the risk process, we identify those needs, and then we 
apply one of over 80 evidence-based recidivism-reducing 
programs or productive activities that are worth time credits. 
That is the essence of the FIRST STEP Act. I am a bit confused 
about where people do not believe that we are doing this, 
Senator. I believe we are doing it.
    Senator Grassley. Okay. I want to go to home confinement. 
It has been a very vital tool to decrease the prison population 
during COVID, and it is successful in monitoring inmates. Of 
the 24,000 inmates who are currently on home confinement, 151 
have violated the terms of their release, and only 3 have been 
arrested for new crimes. This highlights how effective home 
confinement can be.
    Given this, I am concerned that the Justice Department's 
memo concluding that the Bureau of Prisons would have to recall 
some nonviolent inmates currently on home confinement back into 
prison facilities once the pandemic period ends. This policy 
would result in almost 4,000 inmates on home confinement being 
forced to return to a facility to complete their sentences. The 
FIRST STEP Act's goals are to reduce recidivism while ensuring 
public safety, all while making sure to not burden the 
taxpayer. This seems--the policy that I referred to from DOJ 
seems to counter the FIRST STEP Act's goals.
    Do you or do you not agree with that? Besides the legal 
reasons outlined in the Justice Department memo, is there any 
policy reason that inmates in home confinement under the FIRST 
STEP Act or the CARES Act should be returned to the Bureau of 
Prisons facilities if they have not violated the terms of their 
release or commit a new crime?
    Mr. Carvajal. Great question, Senator. First off, the 
portion I will start with is whether or not we are bringing 
them back. The reason the discussion--and I would presume that 
the DOJ issued that back in November, was the fact that the 
statute--the CARES Act did not change the statute. The statute 
as written allows for 10 percent of their time or 6 months, up 
to 12 months in the community. CARES Act placement extended 
that. This program was not designed for people to be out that 
long. That is the first part. We would need to change the 
statute or have the authority to adjust it, because we must 
follow the law and that is what we are doing.
    The second piece of this is the President recently extended 
the national emergency, so there is no rush to bring these 
back. We are covered by the CARES Act. We are not advocating 
one way either way. We are planning. We were asked can we 
accommodate if we need to bring these inmates back because they 
are still in our custody, yes, we can. You are correct. Your 
numbers on the 151, the 3 that were new crimes, only one of 
those was violent. I do not know the details. The rest of 
those, we would screen those.
    I want to make something clear, Senator. For anyone to 
believe that we arbitrarily want to disrupt the lives of these 
people after we have put them out, if they have successfully 
been out there, we are going to use good judgment and common 
sense and work within the law to make sure that we place them 
appropriately. We have plenty of bed space in our minimum 
security camps. If they prove that they have been out--I simply 
ask that either the statute is changed so that we can follow 
the law, because as written we would not be within the law, or 
that we work with the DOJ, as we do now, and that people 
understand that we are doing things within the parameters we 
are given. We are not doing them out of like or dislike or 
anything. We want this to be successful. It is the entire 
mission of the Bureau of Prisons to return people to society. I 
do not know why people believe that we are somehow against 
this.
    I will say that we do it responsibly. Part of the direction 
the Attorney General stated in there was that we consider the 
victim, that we consider public safety, and we take that very 
seriously. When we look at this criteria and we make these 
decisions, we make sure that we are not causing a burden to the 
public either. Public safety is part of our--we are a law 
enforcement agency. I appreciate the opportunity to clear that 
up because I do not want somebody to believe that the Bureau of 
Prisons somehow does not want to let people out. That is not 
accurate. We want to let them out within our authorities and 
within the law.
    Senator Grassley. Thank you, Mr. Chairman.
    Chair Durbin. Senator Grassley, let's you and I work 
together on that last question because I think it is an 
important one, and I think Director Carvajal said maybe a 
change in the statute is necessary.
    Senator Grassley. Okay.
    Chair Durbin. We have done things like that before.
    Senator Grassley. Obviously, my question would imply I want 
to work with you.
    Chair Durbin. Good. I look forward to it.
    Senator Feinstein.
    Senator Feinstein. Thanks very much, Mr. Chair.
    I have spent a lot of my past in prisons, particularly 
State prisons, under the California indeterminate sentencing 
laws, sentencing and paroling women convicted of felonies in 
California. I am very familiar with the atmosphere of these 
institutions.
    I wanted to just ask you, a recent study from the New York 
Times indicates that at least 39 percent of prisoners in 
Federal facilities have been infected with COVID, more than 
four times the general rate of infection in the country. The 
situation, I believe, seems to be worse at the Terminal Island 
facility in California where the virus, I am told, has infected 
over 70 percent of the facility's population and killed ten 
inmates.
    According to a January report by the Department of 
Justice's IG staff, at Terminal Island struggled to enforce 
social distancing and may not have been quarantining inmates 
before moving them to alternative housing. The IG also found 
that roughly 60 percent of facility staff said they did not 
have enough personal protective equipment.
    In light of this, Director, what efforts have been made to 
improve adherence to COVID-19 protocols specifically at 
Terminal Island?
    Mr. Carvajal. Thank you, Senator. Terminal Island, as you 
are well aware, was one of our earliest big outbreaks. What you 
said is absolutely correct. We had a widespread transmission. 
Our ability to social distance in a prison we learned early 
on--prisons are not made for that, first of all. They are made 
for the complete opposite. Throw on top of that Terminal Island 
has open dorm and open bays, adds to the problem. It was at 
capacity or over. I do not remember the exact numbers at the 
time.
    Senator Feinstein. How are you handling that open- wards, 
open-beds situation?
    Mr. Carvajal. That is where I am going, Senator.
    Senator Feinstein. Good.
    Mr. Carvajal. We have reduced the population. We have done 
that throughout our--because of a lesson learned, open bay, 
open dorm, not conducive for containment. We have lowered the 
population and spread those inmates out. At the time Terminal 
Island was something where we tried something new. We actually 
acquired tents. In a couple of cases, I believe we--at that 
location we actually partnered with the Coast Guard. We set up 
temporary housing, not orthodox in a prison. The last thing in 
the world we want to do is put somebody in a tent outside 
within the perimeter, but we did that because we saw the effect 
that social distancing had, so we spread people out.
    We have used nontraditional areas to house people. We 
converted factories in some cases, rooms. Anywhere we could 
spread people out, we did that early on. Terminal Island was 
one of those cases. The OIG did go in there--one of the things 
I will point out about that, and we certainly appreciated 
working with them. We work hand in hand with them. They review 
many of our facilities. One of the things I will point out, 
though, because that was so early on, Senator, everybody was 
dealing with this. We learned a lot of lessons through COVID. I 
wish I knew then what I know now about it. We did not know it 
at the time. COVID was new to everybody. We have a history of 
dealing with pandemics very well in the Bureau of Prisons, 
okay? COVID was different. It is extremely contagious. It 
happened very quickly. Testing resources were not available at 
the time. They are now; they were not at the time. Things like 
that, I think that people need to keep into consideration. You 
cannot just empty a prison overnight. It does not work that 
way. We have different challenges within the correctional 
environment, always keeping safety and security first. I 
appreciate the opportunity to clear that up.
    Senator Feinstein. Thank you. In response to a question for 
the record I submitted after you testified before this 
Committee last June, you indicated that the Bureau had reviewed 
40,000 inmates for potential home confinement at that time, 
less than one-third of the total number of inmates in the 
Bureau of Prisons' custody. Director, as of today, 
approximately how many inmates has the Bureau reviewed for 
placement in home confinement?
    Mr. Carvajal. Senator, I wish I could give you a solid 
answer because the numbers have changed. I will tell you that 
we have reviewed everyone who is eligible and has a COVID--at 
least a COVID risk factor. The CARES Act, actually, the way it 
was written, allowed us to review 100 percent of the inmates. 
When you apply those hard criteria, the obvious one that we are 
not going to bend on, the violence, the sex offense, that 
lowered the number to the 27,000. If I had to make a guess, 
because our numbers have shifted over the last year, we----
    Senator Feinstein. A percentage would be fine.
    Mr. Carvajal. I would say 50 to 75 percent, at least.
    Senator Feinstein. Have what?
    Mr. Carvajal. Have been reviewed at this point.
    Senator Feinstein. Right. How many have you----
    Mr. Carvajal. I will have to follow-up with you on the 
exact numbers. I am sorry?
    Senator Feinstein. Do you have the placement facility--the 
placement numbers?
    Mr. Carvajal. I am not sure I am understanding your 
question, Senator.
    Senator Feinstein. You indicated that the Bureau had 
reviewed 40,000 inmates for potential home confinement. What 
portion of the 40,000--a percent would do--have been home-
confined?
    Mr. Carvajal. I apologize. I was not tracking with you. At 
this point we have placed over 24,000 in home confinement since 
the passage of the CARES Act.
    Senator Feinstein. Out of the 40,000?
    Mr. Carvajal. I do not know if it was that specific 40,000, 
Senator. In general, out of our population, we have placed over 
24,000 in home confinement.
    Senator Feinstein. Let me ask one other question. It is my 
understanding that there is an effort to ensure that every 
inmate in BOP custody receives the individualized review 
required by the Attorney General's guidance, and my question 
is: When will that be completed? May we see it?
    Mr. Carvajal. The guidance, I believe what you are talking 
about is the direction to take--to individually review every 
case eligible for home confinement in the totality of 
circumstances of applying those criteria. That is exactly what 
we do. We follow the direction of that memo.
    Senator Feinstein. May we see the results?
    Mr. Carvajal. I do not know how I would do that, Senator, 
but I will certainly talk to my staff. What I mean by that is 
it is not that--I just do not know how we would accomplish 
that, but I will get back with you. I will follow-up with you. 
I just need to talk to my staff about how we would present that 
to you.
    Senator Feinstein. I will write you a formal letter asking 
for the specifics, and you can either adhere to it or not. That 
is your choice.
    Mr. Carvajal. Absolutely.
    Senator Feinstein. I believe we are entitled to know this. 
Thank you.
    Mr. Carvajal. Absolutely.
    Senator Feinstein. Thank you, Mr. Chairman.
    Chair Durbin. Thanks, Senator Feinstein. Senator Cornyn.
    Senator Cornyn. Mr. Carvajal, you and I may be two of the 
only three people on the Committee who know where Three Rivers, 
Texas, is, where you started out your service in the Bureau of 
Prisons. I just want to say thank you for what you do day in 
and day out. I cannot imagine the challenges that confront the 
Director of the Bureau of Prisons, and I want you to let us 
know what we can do to help you accomplish your goal.
    I am glad you made the point that you want to be able to 
release inmates when they are no longer a threat after they 
have served their time. I think the perception is just the 
opposite, and I am glad you clarified that.
    In Texas, as you know, we made a major effort at criminal 
justice reform focused on people who would take advantage of 
the opportunity to deal with their addictions, learn a skill, 
and be prepared for life outside of prison. And it was that 
State-based experiment that was duplicated around the country 
that formed the basis of my interest in particular in the FIRST 
STEP Act. Sheldon Whitehouse from Rhode Island I think was my 
partner on that, and I want to make sure he is recognized for 
his contribution, too.
    By its name, we did not expect to stop with the first step, 
and we are interested in your advice and counsel on what the 
next step should be. For example, I know the experience in 
Texas in the State system was the legislature continued to look 
at follow-on services that might be available, because I can 
only imagine once an incarcerated person is let out of jail, 
they go to their old neighborhood, subject to a lot of the same 
influences they had in the first place, and it is hard, it is 
tough. You have got to admire people who can continue their 
rehabilitation and want to be constructive members of society, 
so we want--I will just ask you that question for the record 
and ask for maybe you and your staff to let us know what 
additional services Congress should authorize in order to make 
sure that this recidivism reduction program is successful once 
people get on the street.
    [The information appears as submission in the record.]
    Senator Cornyn. Sexual assault in prisons is something that 
Congress has addressed previously, and what I am interested in 
is: Do you know how many prisoners in the Federal prison system 
currently have access to services like telephone hotline 
services if they have been a victim of sexual assault?
    Mr. Carvajal. Yes, Senator, all of them. We make sure that 
that is--that we speak about that. It starts with admission and 
orientation. Obviously, PREA plays a big role. One hundred 
percent of our facilities are PREA-compliant. They are reviewed 
often. We make sure that inmates have the number; they are 
posted, electronic bulletin boards, regular bulletin boards. We 
certainly encourage them to come forward, whether it is the 
staff or by use of the hotline to report things of that nature.
    Senator Cornyn. I want to make sure that every victim of 
sexual assault in our prisons has access to services and that 
hotline number, and so I am going to follow-up with you and see 
where we are. I am sure wherever we are, we can always do 
better.
    Senator Durbin asked about stimulus checks for inmates. 
There were two votes on the floor of the Senate, one in 2021, 
and Senator Cotton and Senator Cassidy and Senator Cruz offered 
amendments that would have prohibited the issuance of stimulus 
checks to prisoners. That failed by a vote of 49-50. There was 
another one by Senator Cruz and Senator Cotton, joined by 
Senator Cassidy, that would prohibit any individual who was 
incarcerated in a Federal or State prison from getting stimulus 
checks. That also failed by a vote of 49-50.
    Just going back on the history of these stimulus checks 
under the CARES Act, initially Congress was silent as to 
whether prison inmates would receive those checks. The IRS took 
the position that they were not eligible. Then there was a 
class action lawsuit filed which said that Congress had to--
that the IRS had to comply because there was no explicit 
prohibition.
    Did I recite the history of your experience correctly? In 
other words, originally Congress was silent. Then the IRS took 
the position they were not entitled. Then there was a class 
action lawsuit that said since Congress was silent, they had to 
be provided. Is that correct?
    Mr. Carvajal. Senator, I do not know about the specifics. I 
do know that there is a class action lawsuit. I do know that 
the Bureau of Prisons for a fact is not one of the defendants. 
As with everything that we do, we follow the law, the 
legislation, and we do what is within our authorities, and that 
is what we have done. We have been assured--whoever made the 
decision and how it was made, once it was there, we followed 
it. As I stated earlier, we made sure that inmates who received 
those checks received those checks, working through the IRS, 
the DOJ, and other appropriate offices. That is what I do know, 
sir.
    Senator Cornyn. Mr. Chairman, may I ask on follow-up 
question?
    You have been asked about prison overcrowding, particularly 
in the face of the pandemic, and I would note that at the 
beginning of the Biden administration, there was an Executive 
order issued by the administration prohibiting the use of 
private prison facilities. I believe now there are roughly 
14,000 Federal inmates in those private facilities. Does that 
Executive order make it easier or harder for you to deal with 
the overcrowding issues that were raised earlier? Where are you 
going to put these folks?
    Mr. Carvajal. Thank you, Senator. I know that there has 
been much talk about that. We were working on--we continuously 
assess our population. It has been trending downward. Long 
before midyear last year, long before even the election or the 
change in administration, we determined we did not need a 
certain amount of beds because of the trending downwards. We 
had allowed two or three contracts to expire. We are down to 
eight. There are 11,000 in there right now--13,000 beds. We do 
not need 2,000 of them. Those are expiring.
    This was well in play well before the Executive order. We 
have 55,000 empty beds in our system right now, so we have 
ample bed space. Part of my responsibility, as you know, is 
being a good steward of taxpayer money and utilizing our funds 
appropriately. If we do not need a contract--I am not a 
political appointee; I am a careerist. I do my job, and I make 
sure that we appropriately spend taxpayer money. If we do not 
need that bed space, it has nothing to do with quality. We have 
partnered with the privates for years because we did rely on 
them when our count was at 220,000. We simply do not need the 
beds right now. That may change in the future. Right now the 
Bureau of Prisons does not need those beds. It has nothing to 
do with quality or anything else. We simply do not need the 
beds.
    Senator Cornyn. That is unrelated to the crowding issues 
that were raised by the Chair and others?
    Mr. Carvajal. I am not sure what--crowding is down 7 
percent systemwide. Part of that was because we did release 
inmates. Again, through the CARES Act, 24,000 are on home 
confinement. That does not count normal releases. We have ample 
bed space.
    At one point in time, we were at 220,000. We absolutely 
needed help from the privates or people might have been in an 
unsafe environment. At this point in time today, our population 
is 125,000, and we have 55,000--approximately 55,000 open beds. 
It is not an issue right now. The best way for me to explain 
it.
    Senator Cornyn. Thank you, Mr. Chairman.
    Chair Durbin. Senator Cornyn, I would just like to clarify. 
I think that Director Carvajal made this point, too. It is just 
that it is the nature of the prison system that social 
distancing is a challenge for them. I was not talking about 
crowding per se, but in the context of COVID-19. As the 
Director has mentioned, the total population has gone down 
dramatically.
    Senator Cornyn. I think though when we were talking about 
crowding and social distancing, those were related issues. I 
appreciate your answer. Thank you.
    Chair Durbin. Thank you very much. Senator Booker.
    Senator Booker. Thank you very much, Mr. Chairman. 
Director, thank you very much for being here. I really 
appreciate it.
    I first just want to express my sympathies. I know that we 
lost correctional officers to COVID. I see these as line-of-
duty deaths. In fact, I did a wonderful bill with Chuck 
Grassley to make sure that law enforcement officers who die of 
COVID get the benefits for their families that they should, 
that there is a presumption of it being a line-of-duty death. I 
know that your job in normal times, the officers under your 
command, it is an incredibly difficult, challenging job that 
they put themselves at risk in service of safety. I just want 
to express my gratitude and my sympathies for the officers that 
were lost during this crisis.
    The risk assessment tool called "PATTERN" that was designed 
under the FIRST STEP Act for good-time credits, it has been 
used for home confinement and compassionate release during this 
pandemic. However, I have got serious concerns about the tool 
that we have expressed to your office because of the perception 
of bias that is built into the analysis. It shows sort of a 
stunning bias in terms of the number of African Americans 
versus number of whites who seem to qualify under that PATTERN 
tool.
    I am wondering, will the BOP continue to use the risk 
assessment tool for purposes of home confinement and 
compassionate release for COVID-19?
    Mr. Carvajal. Okay, thank you, Senator. Two things.
    First off, I mentioned this earlier, and I think it is 
important to point out we did not develop PATTERN. We assisted 
in the development through outside researchers and scientists, 
outside stakeholder input, and this tool showed across race, 
gender, and ethnicity it had the highest level of predictivity, 
and that is why it was chosen. I did not choose it. We are the 
end user. It is the Department's tool. It is being reassessed 
now. There were some adjustments made in January 2020, Senator, 
to your point. There was a perceived or actual bias against 
people of color, so they removed two pieces of that. It was the 
age of first arrest and age of first conviction and voluntary 
surrender. That was done to remove that bias or perceived bias, 
and it also created more transparency and fairness.
    Again, I did not select that tool. We are the end user. It 
goes under review every year. There is independent researchers 
right now. The National Institute of Justice actually does the 
contracting for that. It is being assessed now. I do not have 
anything to do with the assessment. We are the end user of that 
tool. We will continue to use it as long as we are directed to 
use it.
    Senator Booker. I know that you all are consulted and the 
DOJ works with you as they develop and perfect that tool.
    Mr. Carvajal. Yes.
    Senator Booker. Your continued engagement on its fairness 
is----
    Mr. Carvajal. Our staff are involved in it, Senator. The 
same thing with the needs assessment. We worked on the needs 
assessment with outside consultants, outside stakeholders, some 
of which were leadership of other correctional agencies, so 
that we get a good input of subject matter experts, and we 
developed the needs tool. We did not develop it in a vacuum. We 
do get input from the outside. I was rather shocked at the 
IRC's report critiquing the tool when they had review of it and 
input of it also.
    Senator Booker. Again, it still seems to be imperfect, and 
I am hoping that--you guys have been very communicative with my 
office. I am hoping you will continue to take input with us as 
we try to get something that is ultimately more fair and----
    Mr. Carvajal. I understand, Senator. Everything can always 
be improved, and we certainly understand that.
    Senator Booker. I appreciate your--this dialogue has been 
really constructive, and can we get back to just the issue of 
solitary confinement in the age of COVID? For many months we 
have been looking at Fort Dix's COVID-19 numbers, and they were 
said to be low because of the BOP's action plan, and the agency 
was taking steps in that context. We just believe that that is 
actually not the case, and that courts were buring--buying the 
argument, but denying compassionate release that people should 
have gotten.
    Again, to give you an example, there was a man named Mr. 
Marulanda Trujillo who was an individual incarcerated at Fort 
Dix whose motion for compassionate release was denied. His 
underlying health conditions were pretty significant: severe 
coronary heart disease, heart failure, chronic atrial 
fibrillation, severe mitral valve regurgitation--I am trying to 
say these things like I am a doctor, but I am not--multi-vessel 
coronary artery disease, chronic diastolic heart failure, and 
more.
    Mr. Trujillo was later put into quarantine because of his 
risk of contracting COVID-19, but Fort Dix's quarantine process 
appears to have spread rather than contained the virus. 
Tragically, Mr. Trujillo died.
    This is to me a matter of not just justice, but it is a 
matter of compassion and empathy to keep people that are so 
frail in their condition, their risk to the population is so 
low, and so I just want to continue to be engaged with you on 
these concerns. We know in New Jersey the virus unfortunately 
is still stubbornly persistent, and I would like to just maybe 
end with just a question. You know, what steps are you trying 
to take to continue to ensure that CDC guidance is being used 
to prevent more unnecessary deaths and not putting people in 
solitary confinement but really trying to lean into the idea of 
that word "compassionate" as in compassionate release? I know 
that we need to move on to my colleagues, but I am hoping that 
you can give me a brief answer now, but maybe we can continue 
to have dialogue between my office and yours.
    Mr. Carvajal. Absolutely, Senator. Two things I want to 
clarify for you. I appreciate the opportunity.
    Number one, I cannot necessarily talk about certain cases, 
but I will tell you in a case such as the one you described, 
you know, the compassionate part of all that is the emotion, 
and I certainly understand. All of those deaths weigh on me. If 
we did not recommend that individual, there was a very good 
reason. I will give you an example. They may have had a 
detainer or something of that nature, which is hard criteria. I 
have to follow the rules, Senator. Sometimes people do not 
understand. We are not not letting someone out because we do 
not want to or do not support it. We are following the rules as 
given to us. I appreciate the ability to clear that up.
    Fort Dix--I oversaw Fort Dix as a Regional Director. As you 
are well aware, at one point there were over 5,000 inmates 
there. It was the single largest facility in our agency, one 
facility, two separate, east and west. It is down about 50 
percent capacity. I did that based on my working knowledge of 
that place. Our goal is to get it down because of the points 
you said. We learned early on that you cannot social distance 
in an area like that, open barracks. That is one of the things 
we did.
    The other thing I will point out is from day one we get 
much criticism about how we responded to COVID, but we have 
been in lockstep with CDC guidance all along. When it changes, 
it is difficult for us in a correctional environment sometimes 
to apply that guidance. We do our best to do it. Our medical 
director of the agency speaks to the CDC on a weekly basis, 
sometimes daily basis. I want to stress that to you, that 
everything we do is in lockstep with CDC. In fact, we had input 
on the guidance that CDC put out for correctional and detention 
centers. A lot of that came with our collaborative efforts with 
them.
    I do not want anyone to think that we are making this stuff 
up as we go along. We are consulting with the experts out there 
and making adjustments. It is very hard to apply sometimes in a 
correctional environment because security and safety is always 
going to be first and foremost of everything. Thank you for 
allowing me to answer that.
    Senator Booker. Yes, sir, and, again, the communication is 
really critical, and I appreciate that you have those open 
lines, open channels.
    Mr. Carvajal. Yes, sir.
    Senator Booker. Thank you.
    Chair Durbin. Thank you, Senator Booker. Senator Lee.
    Senator Lee. Thank you, Mr. Chairman. Thank you, Director 
Carvajal, for your service, and thanks for being here today.
    You testified a month or so ago in front of an 
Appropriations Subcommittee, and in your testimony, when 
talking about private facilities, you described, as I 
understand it, those facilities as safe, indicating that BOP 
does rely on them, and that they meet your safety standards. I 
was, therefore, a little bit surprised when the Executive order 
came out and the Executive order relied in part on the 
conclusion that private contractors "consistently 
underperform."
    Based on your testimony, it sounds like that has not been 
your experience. Can you tell me, is there an inconsistency 
between that finding that they consistently underperform and 
your experience with them?
    Mr. Carvajal. Yes, Senator. Again, I want to stress the 
point, for the obvious reasons, that I am not a political 
appointee.
    Senator Lee. I understand.
    Mr. Carvajal. I am a careerist. You know, some of this I 
have to be careful how I say it because I do not want to think 
that I am playing any--I am going to tell you based on my 
experience. We have partnered with the privates. The 
determination to quit using them was made well before even the 
election, much less the Executive order came out. To your 
point, they are held to a statement of work and a contract. If 
they were underperforming, we would not utilize them. That is 
the best way for me to say that.
    I will follow-up with one piece. We do have a contract, to 
your example, that we issued an issue of a notice of violation 
recently because they were not performing to standard. There is 
a process for that. I will not get into the facility or why. 
That is the first time I know of that our agency has done that 
when----
    Senator Lee. You are talking about one contractor, I 
assume.
    Mr. Carvajal. Yes. My point is that it can happen like 
anything else. They are either performing or they are not. We 
hold them to the standard.
    Senator Lee. That makes sense. You talked a few minutes ago 
about other aspects of the order. What about the part dealing 
with the U.S. Marshals Service? As I understand it, the U.S. 
Marshals Service relies heavily on private facilities, 
particularly for pretrial defendants, and that at any given 
time you might have as many as 62,000 individuals who have got 
to be able to make their court dates in Federal Courts 
throughout the country. Only 14 of those defendants are housed 
in U.S. Bureau of Prisons facilities, meaning that the other 
6--86 percent have got to be housed somewhere else.
    In light of that order, what will happen? What will happen 
to that? Does BOP have the resources to deal with those 62,000 
U.S. Marshals Service detainees?
    Mr. Carvajal. Senator, I will certainly defer to the United 
States Marshals Service to follow-up with that. I do not think 
it would be appropriate for me to speak about their operation. 
As I stated earlier, at this point in time, our private 
facilities hold about 11,000 inmates. We have approximately 
55,000 beds available at this point. Yes, we take in inmates 
from the Marshals Service. We collaboratively work with them 
all the time, and part of our mission, which we have been 
scrutinized early on, is movement. The judiciary did not stop. 
As you stated, the Marshals take those inmates, and they 
eventually come to us.
    Senator Lee. Right. To be clear, those 55,000 spaces are 
not necessarily where you need them----
    Mr. Carvajal. Exactly.
    Senator Lee [continuing] for the U.S. Marshals Service 
detainees.
    Mr. Carvajal. Correct.
    Senator Lee. Got you. Since the Biden administration has 
begun, illegal border crossings have reached their highest 
level in about 15 years. It amounts to about 171,000 people 
crossing over the border in March, and that is just the ones 
that Border Patrol has apprehended. That is not too far from 
the entire population of Salt Lake City crossing the southern 
border in one single month. Salt Lake City is just under 
200,000 people.
    If private facilities are no longer available for use to 
detain criminal aliens, what is the likely effect that this 
massive increase of potential immigrant detainees, what impact 
is that going to have on BOP?
    Mr. Carvajal. Senator, we do not make the determination--
obviously, the Department of Homeland Security and Immigration 
and Customs Service, ICE, they oversee that process. We do hold 
non-U.S. citizens. It is about 17 percent of our population 
today. It is about 25,000. We work collaboratively with ICE for 
hearings, and they make the final determination whether someone 
is going to be deported or not, and we work with them. We do 
not house inmates traditionally. We have under emergencies for 
ICE, but we do work with the Marshals Service. I would defer 
any questions about how that impacts to the Department of 
Homeland Security.
    Senator Lee. Mr. Chair, I have got just a couple more 
questions. May I finish those? Thank you.
    I want to talk about the FIRST STEP Act, something that 
Senator Durbin and I spent a great deal of time working on over 
the years and are proud to have passed. That bill includes, 
among other things, significant programming for inmates. What 
specific programs and initiatives have you been able to 
implement under the FIRST STEP Act for prisoner development 
rehabilitation?
    Mr. Carvajal. Yes, Senator, we have over 80 evidence-based 
recidivism-reducing programs or "productive activities," as we 
call them. They range everything from GED and literacy to 
secondary education. Vocational training is something big we 
are trying to expand, career technical education. You know, 
part of the whole reentry process is giving someone the skills 
to apply when they get out. All of the trades, that is a focus 
to try to teach these people a skill so that when they get out, 
they will be productive.
    We are working on expanding our mental health treatment 
for, as I mentioned earlier, life skills. Some of our inmates 
need to learn basic life skills.
    One of the things that we learned, obviously, through 
COVID, like the rest of the world, is the use of virtual. 
Prisons are not built for that, our infrastructure, so we are 
working on upgrading our infrastructure so that we can 
implement virtual programming to inmates so that we do not deal 
with this need to social distance. They can do it from the 
safety of their cells. We are looking at implementing tablets, 
things of that nature, but all of those come with security 
issues that we have to overcome, you know, infrastructure 
issues that we have to overcome, things like that.
    The biggest focus right now, Senator, is hiring staff to 
deliver the programs so that we can expand the capacity so that 
more inmates have the opportunity to earn those time credits.
    Senator Lee. Finally, during COVID, a lot of Americans have 
seen their religious liberties impaired in one way or another. 
Fortunately for our prison population, there are specific 
protections in RLUIPA, as you know. It says that the Government 
cannot substantially burden a prisoner's free exercise of 
religion without satisfying strict scrutiny. What steps have 
you been taking to ensure that, despite COVID-19 and other 
challenges you face, incarcerated individuals are still able to 
exercise their religious liberties?
    Mr. Carvajal. Very important to the Bureau of Prisons also, 
Senator, and that is one of the things that, along with our 
mental health treatment and our medical treatment, we consider 
that vital, critical. Our ability to provide religious 
services, although they have been modified somewhat, have 
always been available, even through COVID. We have worked on 
getting volunteers back in here lately toward the end now that 
people are receiving vaccinations and stuff. Obviously, early 
on it did impact the ability. We rely heavily on volunteers. We 
have over 11,000 volunteers; the majority of them are 
religious-based that come in. We serve over 30 congregate faith 
groups. There are all types of opportunity. That does not count 
the individuals who choose to practice whatever faith they 
believe.
    That has always been available during COVID, although it 
has been modified at times. We have had to make adjustments 
like everything else. It was never not available.
    Senator Lee. Thank you very much, Director Carvajal.
    Thank you, Mr. Chairman, for your indulgence.
    Chair Durbin. Thanks, Senator Lee. Senator Klobuchar.
    Senator Klobuchar. Thank you very much, Mr. Chairman. Thank 
you for holding this important hearing. Senator Lee--Senator 
Lee, thank you for your work on this bill. I know I have been 
at meetings with you and Senator Durbin and Senator Booker 
through various administrations where you helped to get the 
FIRST STEP Act passed, and I want to thank you for that.
    I guess I will start with that. I know you have had a few 
questions about this, Director Carvajal. You know, you talked 
about what you are doing to implement that bill. I have done a 
lot of work with drug treatment programs. We have a lot of good 
treatment programs in my State. According to the Independent 
Review Committee that was actually established as part of the 
FIRST STEP Act, BOP has not taken sufficient steps, including 
prior to the pandemic, so I understand the problems with the 
pandemic--everyone does--but to provide sufficient access to 
programming. Do you agree with the assessment? Do you think 
there is something wrong with the assessment?
    Mr. Carvajal. Yes, I do, Senator. I cannot speak for 
anything that happened before. I was not in the process of 
delivering, but from my time forward, I assumed this position 
about a month before COVID hit, so I would have to defer or 
follow-up prior to that. I will tell you that even through 
COVID we had over 25,000 inmates complete a program for time 
credits. The IRC works with us. I am familiar with the report 
and the recommendations they made. We worked with them to do 
this. We have expanded our programs. We had over 41,000 inmates 
participate in drug treatment or education last year of some 
type in the Bureau of Prisons. I am not sure what it is that we 
have not provided. I would need some specifics.
    Senator Klobuchar. Okay. I think it is in the report that 
they talked about that there was not sufficient access.
    Mr. Carvajal. They talked about capacity. We have expanded 
capacity.
    Senator Klobuchar. Okay.
    Mr. Carvajal. As I stated, over 41,000 inmates participated 
in a drug treatment or education program last year, even 
through COVID.
    Senator Klobuchar. What you are saying is you acted on 
those assessments?
    Mr. Carvajal. Yes. From the time I have been in here, we 
are taking action to meet the FIRST STEP Act.
    Senator Klobuchar. Okay. Let us go to the focus, say, on 
the pandemic and what has happened there. The fight against the 
pandemic, as we know, continues to put more incarcerated people 
at risk. The BOP announced the deaths of eight more 
incarcerated people in March and April 2021. In addition to the 
vaccine, of course, testing is one of the best ways to control 
the spread of the virus, but according to a report by the 
Pandemic Response Accountability Committee, BOP only tested 30 
percent of the inmate population between February and August 
2020.
    Since August 2020, has the percentage of people in BOP 
facilities who have been tested increased, and do you have that 
number?
    Mr. Carvajal. Senator, I know that we have conducted over 
half a million tests in the Bureau of Prisons of over 150,000 
inmates at least. That may include testing some twice, things 
like that. I follow the guidance of the CDC and my experts, my 
medical director. Early on--it is probably accurate--testing 
resources were not available, Senator, or we would have been 
applying them.
    Senator Klobuchar. There are more available now, but I just 
want to look at----
    Mr. Carvajal. Yes, there are.
    Senator Klobuchar. I want to look at the percentage, and it 
is okay if you do not have that.
    Mr. Carvajal. I do not have the exact----
    Senator Klobuchar. If you could give it to me later, that 
would be great, to go from the 30 percent to where you are 
since August 2020.
    Senator Klobuchar. Last June, I asked about testing of 
asymptomatic inmates, which BOP said it was doing in 
consultation with CDC guidelines. Do you know what percentage--
again, you can put it in writing later--what percentage of BOP 
tests have been administered to asymptomatic inmates?
    Mr. Carvajal. I do not know the number, the percentage, 
Senator, but our strategy with the testing is in lockstep with 
CDC and correctional systems. I know that that has changed 
recently, and we are working on that now. My medical director 
is actually working on a plan going forward of how we would 
apply testing if the guidance changes. We have been following 
the guidance. At one point asymptomatic testing in our 
environment was not recommended because it was not a good use 
of resources.
    Senator Klobuchar. Yes, I remember. I know this way back 
because when my husband had COVID, I did not get a test. You 
know, things have changed over time, because that was over a 
year ago.
    You testified today when Senator Durbin was asking 
questions that while all BOP staff have been offered the 
vaccine, only 51 percent of staff have been vaccinated. Is that 
right?
    Mr. Carvajal. Yes, ma'am, it is about 51 percent.
    Senator Klobuchar. Okay. Why do you think that half of BOP 
have accepted the vaccine when offered and that half have not? 
What steps are you taking to combat the vaccine hesitancy?
    Mr. Carvajal. Senator, we have done a campaign effort 
obviously encouraging it. Normally, as a leader, I do not do 
anything before my staff other than when I want to show them by 
example. This is one of those cases where I myself was 
vaccinated to encourage others that it was safe.
    Senator Klobuchar. Right.
    Mr. Carvajal. I have done videos. We collaborated with the 
national union at the local level and the national level to 
encourage our staff to be vaccinated. It is a personal choice. 
We respect that. We do not mandate it. It is in line with 
firefighters, police, critical infrastructure. I have seen 
everything----
    Senator Klobuchar. I know, but 95 percent of Mayo Clinic 
doctors have been vaccinated because they do not want to give 
it to their patients.
    Mr. Carvajal. I understand.
    Senator Klobuchar. I keep thinking of the inmates that are 
there, you know, obviously incarcerated, but they cannot choose 
whether or not the people that are close to them have decided 
to have the vaccination. I guess that is something for us to 
deal with on another day, but to me, you have literally people 
who are incarcerated and then you have people that have chosen 
not to get the vaccine. Then I look at the Mayo Clinic number 
at 95 percent, and so the people that go to the Mayo Clinic, a 
place I am very proud of in my State, you know, those patients 
do not have that same risk as the people that are incarcerated.
    My last question is about last May I sent you a letter 
expressing concern about how the BOP is assessing eligibility 
for home confinement, particularly after we learned about 
Andrea Circle Bear who died in Federal custody 4 weeks after 
giving birth while on a ventilator and after testing positive 
for the coronavirus. We know that weeks later Paul Manafort and 
Michael Cohen were transferred to home confinement.
    I still do not have the data that I think I need to release 
information on how cases are prioritized and the demographic 
data of the people who were transferred. Can we get that? What 
percentage of transfers were denied because of an inmate's 
PATTERN score, the BOP's risk assessment tool, which Senator 
Booker mentioned numerous civil rights and legal organizations 
have warned is likely to perpetuate racial disparity in 
decisionmaking? Can we get those percentage releases so we 
could look at them?
    Mr. Carvajal. Yes, Senator, I will speak with my staff and 
follow-up on that. I would like to--since you mentioned the 
PATTERN score, we have recently expanded the criteria working 
with the Department. We are now--have now been given the 
authority to consider low PATTERN scores going forward, where 
before it was a minimum PATTERN score was the criteria. Working 
with the Department of Justice, we have increased that to 
consider low PATTERN scores now. So we are working to get as 
many people appropriately out, again, within the criteria we 
are given, Senator.
    Senator Klobuchar. All right. Thank you.
    Chair Durbin. Senator Cruz.
    Senator Cruz. Thank you, Mr. Chair. Mr. Carvajal, welcome. 
Thank you for your service. Thank you for your testimony.
    What currently is happening to Bureau of Prisons inmates 
who are criminal aliens when their terms of incarceration 
expire? Are they being transferred immediately to DHS for 
deportation?
    Mr. Carvajal. Senator, we have immigration hearing programs 
at 24 of our sites. We work in conjunction with ICE to do 
hearings. ICE makes the final determination of whether or not 
they are going to be deported or not. We have a process that 
works with that. About 17 percent of our population are non-
U.S. citizens. Again, ICE, working with them, they determine 
whether or not they are going to be deported. Typically they 
make that determination. There is a timeframe. They come and 
pick them up, and then they are released to them.
    Senator Cruz. What percent of criminal aliens are being 
deported after they have served their prison time?
    Mr. Carvajal. Senator, I do not know that information. You 
would have to ask the Department of Homeland Security. I do not 
track that system because it does not--it is not within my 
authority.
    Senator Cruz. The Bureau of Prisons does not keep records 
as to whether inmates are being released into the American 
population or being released into the custody of ICE?
    Mr. Carvajal. Yes, we do, Senator. I just do not have that 
number in front of me. We could follow-up with you on that.
    Senator Cruz. Okay. I would ask you to please provide those 
data.
    What does the Bureau of Prisons do with inmates to minimize 
the risk of COVID transmission?
    Mr. Carvajal. Like we do with everything else, Senator, we 
educate them. We enforce the rules. We provide face coverings, 
PPE. We try to spread our population out as appropriate, as we 
can, put things in place, barriers--the same thing that I would 
say everyone else is doing to minimize the risk.
    Senator Cruz. You also have reasonable social distancing so 
that inmates are not crowded in too closely with each other?
    Mr. Carvajal. That was a challenge because prisons are made 
to contain people closely, so that has been one of our biggest 
struggles. We are doing the best we can at this point, and with 
a reduced population, we have been able to do that. We are 
redistributing our population. We put COVID target population 
numbers on those open-dorm facilities for the reason you said, 
so that we can allow more space between them. We have expanded 
the use of nontraditional areas to spread them out.
    Senator Cruz. A couple of weeks ago, I led a delegation of 
19 Senators who traveled to the southern border, traveled to 
the Rio Grande Valley, and we saw firsthand the crisis that is 
unfolding on our southern border. We visited the Donna tent 
facility which was constructed to meet this enormous surge of 
illegal immigration that is happening right now.
    The Biden administration had implemented a ban on media 
seeing what was happening at the Donna facility. It was an 
unprecedented ban. Prior administrations did not ban the media 
from going in. The Trump administration allowed the media in. 
The Obama administration allowed the media in. The Bush 
administration allowed the media in. The Clinton administration 
allowed the media in. The Biden administration blocked 
reporters and cameras from seeing what happened.
    The Donna tent facility is this enormous tent city. It has 
a capacity of 1,000. It was built to hold 1,000 people. Under 
COVID restrictions, its capacity is 250. The day we visited the 
Donna facility, there were over 4,200 people crammed into a 
facility designed to hold 250 people with COVID restrictions.
    We saw firsthand the Biden cages. Joe Biden is building 
more and more cages filled with children, and the cages are 
more and more full than they have ever been. In these Biden 
cages, we saw little boys and little girls. They were not 6 
feet apart. They were not 3 feet apart. They were not even 3 
inches apart. They were lying side by side by side on the 
floor. They had no beds. They had no cots. They had no masks. 
On the floor, holding emergency reflective blankets. The rate 
of COVID positivity in the Donna facility is over 10 percent. 
What we saw is inhumane. It is a humanitarian crisis. It is a 
national security crisis. It is a public health crisis. It was 
preventable. It is the direct consequence of political 
decisions made by Joe Biden and the Biden administration.
    In the Federal Bureau of Prisons, would it be acceptable 
for Federal prisoners to be housed in cages where they were 
side by side lying next to each other, packed in in the midst 
of a pandemic?
    Mr. Carvajal. Senator, the simple answer to that is no. We 
are scrutinized often for how we house our people during COVID. 
As I stated, it is a challenge, but we absolutely treat 
everyone with dignity and respect. We have standards, and we 
meet that regardless of what day it is or what is going on.
    Senator Cruz. Is there any Federal Bureau of Prisons 
facility that would be allowed to continue at 1,700 percent 
capacity, which is what the Donna tent facility is right now?
    Mr. Carvajal. Again, Senator, I have never experienced 
that. I know we have been overcrowded before. We are fortunate 
at this point that we have ample bed space. I cannot--I do not 
want to answer that because I do not know the answer. I have 
not faced that to be able to tell you that.
    Senator Cruz. All of this is continuing, and it is getting 
worse, and it is getting worse because of political decisions 
the Biden administration continues making.
    Thank you.
    Chair Durbin. Senator Padilla by remote, I believe.
    Senator Padilla. Thank you, Mr. Chairman.
    Chair Durbin. Senator Padilla, I am sorry. Your 
transmission----
    Senator Padilla. Can you hear me okay?
    Chair Durbin. It did not start off well. Want to try again? 
You want to try?
    Senator Padilla. Okay. Is that better?
    Chair Durbin. We will see.
    Senator Padilla. I will try to keep it brief. I know 
several of the issues I wanted to raise today have already been 
asked, including clarity and a better picture on home 
confinement and the numbers of violations, et cetera, so I 
appreciate Senator Grassley raising that earlier in today's 
hearing.
    I will keep my remarks and questions to one specific issue, 
and that is this: Recently, California Governor Gavin Newsom 
announced plans to close a State prison in Susanville, 
California, that has seen a steady decline in population, with 
COVID-19 being one of the immediate causes of the decline. In 
closing the prison, it presents the State a tremendous 
opportunity to take some of the funds that are saved through 
that closure and invest elsewhere in State priorities while 
maintaining public safety. These funds could soon be 
reallocated for a number of projects and programs for the 
State.
    My question for Director Carvajal is this: the Federal 
prison population has been steadily declining for years, and 
the fallout from COVID-19 has further reduced the prison 
population. Have you considered closing any facilities and 
allowing an opportunity for the Federal Government to more 
strategically reallocate funds and address staff shortages at 
the same time?
    Mr. Carvajal. Senator, that is a great question. The simple 
answer is we are not there yet. We are working as we speak on 
realigning and reworking our capacity. As I stated earlier, one 
of the biggest challenges of the Bureau of Prisons is our aging 
infrastructure. Over one-third of our facilities are over 50 
years old, and 45 percent of them are over 30 years old, which 
makes it rather challenging. These things deteriorate at a 
faster rate because of their consistent 365-day use in harsh 
conditions sometimes.
    As we redistribute our population, again, as I stated 
earlier, part of my responsibility is to make sure that we put 
taxpayer money to good use. At some point, working through the 
Department to see what our needs are, there may be 
recommendations on just that. At this point, I would say the 
answer is no. It certainly is not anything that we would rule 
out in the future.
    Senator Padilla. Okay. I would appreciate a commitment for 
an ongoing conversation on that front. I think we can be more 
strategic, more effective, more efficient, frankly, in both 
maintaining public safety but reforming how we not just house 
but help inmates who do have an opportunity to reenter society 
do so on a more constructive basis going forward. Thank you for 
your testimony today.
    Chair Durbin. Thanks, Senator Padilla. Senator Sasse.
    Senator Sasse. Thank you, Chair. Director, thanks for being 
here, and thanks for your forthright manner thus far in the 
hearing.
    I would like to ask some questions related to the Jeffrey 
Epstein case. Epstein obviously was a wealthy financier who ran 
a global sex trafficking ring that preyed on scores and scores 
of young women, and he and his cronies committed some of the 
most repugnant crimes imaginable against these young women. Yet 
he was allowed to die in the Bureau's custody despite being a 
known suicide risk. He deprived--or the failures of the Bureau 
in that apparent suicide deprived not only all these young 
women of having their day in court and justice to be done and 
meted out in a public way, the way we do in this country, but 
in addition he took with him to his grave all of the additional 
evidence he had against many of his co-conspirators.
    I would like to ask, can you think of any case that 
approaches the Epstein case in terms of a crisis of public 
trust for the BOP? Is there any case that rivals it?
    Mr. Carvajal. No, Senator, I cannot think of one.
    Senator Sasse. We are agreed. Thank you for that answer. We 
have had Directors of the BOP in the past who gave long-winded, 
meandering answers so they did not have to acknowledge that we 
needed to have more resources focused in this case. Obviously, 
it is the most basic duty of the BOP to keep prisoners alive.
    I guess as a strategic management matter, does every 
prisoner merit equal treatment, or do some inmates such as 
those at the center of the sex trafficking ring where there is 
lots of evidence that has not yet been gathered against other 
conspirators, do some prisoners merit special attention and 
special measures to make sure that their life is not at risk?
    Mr. Carvajal. Senator, first off, I would like to say that 
we certainly treat people fairly, but all of our inmates, the 
cases like you described there, we apply the appropriate amount 
of security, needs, things like that. They are all special 
cases. Without getting into the specifics, which I do not think 
would be appropriate, about how we do certain things for 
certain inmates, the simple answer is that is part of our job 
to assess that and to apply the appropriate amount of 
supervision and security. And if it requires more in some 
cases, then we should be doing that. If it does not, we 
should--that is in essence what we do.
    Senator Sasse. Thank you. Can you give us a top line on 
what went wrong in this case? I recognize that we have two 
guards who are about to go to trial in the case, so I 
understand that there is an ongoing investigation. We are also 
over a year into this investigation, and past Directors of the 
Bureau have not given this Committee any adequate answers, just 
bureaucratic nonsense. We are well over a year into the 
investigation. What can you tell us about what went wrong?
    Mr. Carvajal. Senator, you are probably not going to like 
my answer, but it is a statement, it is a fact that I cannot 
discuss it because it is still under investigation. I had my 
Deputy Director call the Office of Inspector General last 
week--a week or so ago--to get the status of the investigation. 
We were told that the investigation is on hold until which time 
the trial that is set for June, as you mentioned, takes place. 
I do not control the investigation. That is up to Inspector 
General Horowitz. You would have to discuss it with him. It 
would be inappropriate for me to talk about anything regarding 
that other than what I have said already.
    Senator Sasse. I understand that there will be things that 
could be used in court about the prosecution of the two guards 
that cannot be discussed here. I do not understand why you 
would not be able to explain to us what we know about the 
security footage, what particularly is missing and how did that 
happen. These guards are not being investigated for anything 
related to their destruction of evidence as far as I am aware. 
I get that there is an investigation that does touch on a 
prosecution of two individuals, but many more systemic things 
went wrong than just the things these two guards are being 
charged with. A year, a year and a half into the investigation, 
we do not have anything to publicly say to the taxpayers or to 
these victims yet?
    Mr. Carvajal. Senator, here is what I would say to that. 
Again, I cannot speak about something that is under 
investigation. Here is what I will commit to: After that 
investigation is over and all of these things have been 
appropriately done, I will absolutely follow-up with you on 
anything regarding what we could do better or different. I do 
not think it would be appropriate for me to get into any of 
that right now because there is even a chance. It is under 
litigation. I have been advised not to speak about it, but not 
because I do not want to, because it is not appropriate right 
now.
    Senator Sasse. Okay. We will definitely keep you to your 
word on the pledge for the after-action when this trial is 
over. Can you explain what processes have changed with regard 
to high-value targets? There are things you have surely learned 
that we would want to be implementing to make sure that other 
high-value targets--obviously, every human life is equal in 
dignity in the eyes of God, but for the purposes of 
investigation of co-conspirators, we care more about keeping 
certain prisoners alive because they are necessary to be 
evidence and testimony in other cases. What processes have we 
changed to make sure other high-value targets are not able to 
commit suicide in a situation like this?
    Mr. Carvajal. Again, Senator, without getting into 
specifics, because I do not think it would be appropriate in 
this forum, I will say that we treat people as appropriate for 
their security needs. First of all, whether or not someone is 
valuable to a case or whatever is irrelevant to us. That is 
someone's job to do. We treat everyone--everyone's life of 
value. We are going to apply the appropriate security. Again, 
it is something that I do not think is appropriate to speak 
about now, but I certainly will follow-up with you at which 
point I can and have that discussion with you.
    Senator Sasse. I have given you credit for being forthright 
up to this point, but I do not think the answer you just gave 
aligns with where you started. I think you acknowledged at the 
beginning that certain prisoners are more important for the 
purposes of public trust and for other public investigations 
and other prosecutions that are happening.
    Ms. Maxwell, Mr. Epstein's chief of staff or co-
conspirator, or whatever we want to call her, she is of greater 
value to public trust than the median inmate in a facility 
today. Are you telling me that there is nothing additional that 
is being done to make sure that she cannot commit suicide 
relative to just the median prisoner in any of your facilities?
    Mr. Carvajal. We apply appropriate security. You asked me a 
question earlier, what have you learned? Again, without getting 
into specifics, Senator, the answer is we learned lessons from 
that, and we have made adjustments. It is just not appropriate 
for me to discuss them, but not for the investigative reasons 
or whatever. We assess the security and the needs of someone 
who comes in. You used the words "high value," "special 
security needs," whatever. We are going to apply the 
appropriate security that we think we need to do to protect 
that individual, protect the staff, protect everyone. We do 
that individually assessing these cases.
    Senator Sasse. I have got more I would like to discuss with 
you about this, but the Chair gets the gavel back, so I will 
follow-up offline. Thank you, sir.
    Mr. Carvajal. Yes, sir.
    Chair Durbin. Thank you, Senator Sasse.
    Senator Ossoff I believe is by remote. Are you with us, 
Senator?
    Senator Ossoff. Yes, I am. Thank you, Mr. Chairman. Thank 
you, Mr. Carvajal, for your presence today.
    Will you please provide to the Committee an accounting of 
the policies, practices, and procedures that are implemented by 
BOP to ensure the preservation and retention of closed-circuit 
camera footage and other evidence relevant to investigations?
    Mr. Carvajal. Yes, Senator, we have policies and procedures 
to retain that. Some of the issues that we have faced in the 
past were not necessarily retention. They were that things did 
not work. It was our aging infrastructure. We have over 24,000 
cameras in the Bureau of Prisons, and in the last 18 months, we 
have upgraded 116 of those systems. It is a resource issue. We 
are trying to get with the modern era, so to speak. It is a 
fiberoptics upgrade so that we can go to digital platforms. 
Some of the issues we have encountered in the past--and 
certainly I have knowledge of that as a warden in some of these 
facilities--is that sometimes the cameras were not working when 
they should have been because things get old and dated. We are 
committed to replacing those. We are working on that now.
    We have always had retention of systems in place. Most of 
the time when we did not have it, it was because the camera was 
broken or there was a mechanical issue.
    Senator Ossoff. Thank you, Mr. Carvajal. I would like to 
just amend the request, and this is a request for the record. I 
would like you please to provide to the Committee an accounting 
of those practices and procedures, and also a list of 
identified incidents where such footage was lost within the 
last 2 years. Can you do that for us for the record, please?
    Mr. Carvajal. We will follow-up on that. I do not have that 
information in front of me, Senator, but we can follow-up----
    Senator Ossoff. Forgive me. I would just like your 
commitment that you will provide that information to the 
Committee.
    Mr. Carvajal. I will take that back to my staff and see 
what we can get you, Senator.
    Senator Ossoff. Okay. We can certainly compel that 
disclosure if it is not offered voluntarily, but I hope that we 
can get that on a voluntary basis.
    Can you please also provide to my office and to the 
Committee an accounting of how many individuals in Georgia are 
currently serving their sentences on home confinements due to 
the COVID-19 pandemic?
    Mr. Carvajal. Yes, Senator. Again, I do not have specifics 
for that State, but I could certainly follow-up with you on 
that.
    Senator Ossoff. Thank you. I would be appreciative if you 
could provide that information to my office and to the 
Committee.
    I would like to touch on this question of COVID-19 vaccines 
for BOP personnel with a particular focus on USP Atlanta, but 
also taking a national perspective. What steps are you 
currently taking to encourage adoption of the vaccine by 
personnel at USP Atlanta? What do you assess to be the public 
health benefits and the health benefits within Federal 
facilities such as USP Atlanta and for the population of 
incarcerated persons of having greater vaccine adoption by BOP 
personnel working at those facilities, please?
    Mr. Carvajal. Senator, we encourage the staff to take it, 
but also, because it is not mandatory, we respect their right 
to make a choice, and I have to do that. We believe that the 
way the vaccine was distributed, now that it is available, that 
inmates were protected under the umbrella of staff being 
vaccinated. That is how it was rolled out. That is why staff 
were chosen first to do that. Once again, we have to respect 
the rights of an individual to make that choice.
    With that said, we encourage it. We educate staff. We try 
to lead by example. As I mentioned earlier, where I have been 
vaccinated. I have put out video messages. We collaborate with 
our union. They do the same to encourage staff. At the end of 
the day, it is an individual choice.
    Senator Ossoff. Thank you for that, Mr. Carvajal. Would you 
be willing to work with my team and to communicate with the 
leadership at USP Atlanta about how we can work collaboratively 
to encourage vaccine adoption by personnel at USP Atlanta in 
the interest of the health of employees at the facility as well 
as those who are incarcerated there?
    Mr. Carvajal. Yes, Senator, I will.
    Senator Ossoff. Thank you so much. Mr. Carvajal, thank you 
again for your testimony.
    Mr. Chairman, I yield back.
    Chair Durbin. Thank you, Senator Ossoff. Senator Hawley.
    Senator Hawley. Thank you, Mr. Chairman. Director, thanks 
for being here.
    A few months ago, DOJ's Office of Legal Counsel took up the 
question of what happens to prisoners released in home 
confinement. I would like to return to that, if we could. The 
opinion there concluded that since some inmates may have 
substantial time to go before becoming eligible for home 
confinement under ordinary conditions, the Bureau would have to 
recall these prisoners to correctional facilities. I think we 
are talking about 4,000 inmates or more.
    Can you give us a sense of what specific monitoring 
measures are being used to ensure that inmates in home 
confinement during the pandemic are complying with all of the 
applicable guidelines?
    Mr. Carvajal. Yes, Senator. As you stated, currently there 
are about 4,500 inmates on home confinement specific to the 
CARES Act. What that simply means is under the current statute, 
that is 4,500 people that normally would not be out at this 
point in their incarceration. They are being monitored; 96, I'm 
sorry, 94 percent of them are monitored by contracts, non-law 
enforcement. We rely on contract individuals to monitor these. 
Most of them are done electronically or GPS. The other 4, I'm 
sorry, 6 percent are monitored by United States probation, 
Federal location monitoring.
    Senator Hawley. Has the Bureau been successfully able to 
track all 4,500? You have not lost track of any inmates during 
this time?
    Mr. Carvajal. Senator, we have returned 150 to custody; 21 
of that 150 were specifically for--I am sorry, 26 were for 
escape, for them not being where they were supposed to be. We 
found them. We brought them back to custody, as we would--would 
be expected.
    Senator Hawley. Very good. What steps is the Bureau taking 
to prepare for the return of all of these inmates to their 
respective correctional facilities?
    Mr. Carvajal. The attention we have gotten on that, because 
of the opinion you stated in November, I believe, that the 
Department of Justice put that out, we have always--it is part 
of our mission to prepare for that. The statute currently as 
written, as I mentioned earlier, home confinement was not 
intended for long-term placement. There are actually about 
2,400 that have a release date over a year. There is a small 
number over 5 years. It is about 310. Those specifically we 
would have to address because we would not be in compliance 
with the statute. Either the statute needs to change, or we 
need to make exceptions.
    The good thing about that right now is that we have time 
because the President extended the national emergency. We are 
still covered under the CARES Act.
    Our concern, the BOP's concern over this, is simply that we 
are following the law, Senator. It is not an opinion of who 
should be out or not. We follow the criteria. We do that 
fairly. We put them out. We are concerned with making sure that 
we are actually applying the law as written.
    Senator Hawley. What challenges, if any, do you anticipate 
in returning these prisoners to custody at the correctional 
facilities?
    Mr. Carvajal. It is not necessarily a challenge, Senator, 
because we have the ample bed space. We have over 11,000 beds 
available at our minimum security camps where most of those 
would go. If they have been in the community, they certainly 
could function at a minimum security camp. I think more so if 
that if someone is out there and they are being successful and 
they are following the rules and they have shown that they can 
do that, then we certainly want to work toward--the whole point 
of this is that they are going back to society at some point.
    We also respect the fact, though, that these sentences were 
imposed by the criminal justice system in a court of law, and 
we respect that. That is why we get so much scrutiny about how 
we do this. We simply respect the criminal justice system, and 
we have a responsibility to make sure that, if a judge imposed 
a sentence, that sentence is served, but we are working within 
our authorities.
    Senator Hawley. Very good. Let me shift topics. Mother 
Jones magazine reported in 2018 that up to 72 percent of prison 
technology services, which includes tablets and video 
visitations, are dominated by just two companies. Those 
companies are GTL and Securus. That is overall. That is 
nationwide in the whole prison system. Do you know what that 
breakdown is for the Federal prison system?
    Mr. Carvajal. No, Senator, off my head I do not.
    Senator Hawley. Can you look into that and get back to me 
with what it is? I am wondering how much communication costs 
charged by these two companies to prisons and prisoners have 
increased over the last decade. Do you have a sense of that?
    Mr. Carvajal. I do not know the specific number for those 
companies, Senator. I will give you an example, though. The 
CARES Act called for free phone calls for inmates. They are 
free to the inmate, but they are not free to us. We spend well 
over $100 million providing video services and free phone 
calls, which was not included in the budget. It is a lot of 
money, but we also believe that that is the right thing to do 
because we have restricted visitation somewhat. We try to 
balance it out, but that is the only number off my head. 
Specific companies, I do not know.
    Senator Hawley. Here is what I am driving at. I am 
concerned that there is one or two technology companies who are 
benefiting disproportionately from this market. In particular, 
there is also the practice of these same companies introducing 
special lockdown tablets into prisons, charging inmates by the 
minute, I believe, to read material that is in the public 
domain. All of the profit goes to the tech companies. Again, 
this is public domain material. That seems to me like a bit of 
a problem. Why should these companies, just a couple of them, 
be profiting from public domain material due to their 
monopolies in this market? I will follow-up with you about that 
for the record, if I could. Thank you for being here today.
    Thank you, Mr. Chairman.
    Chair Durbin. Senator Hawley, I want to clarify something 
because there was an exchange dialogue between Senator Grassley 
and Mr. Carvajal earlier, and I participated in it, on the 
question that you raised, and it appears--there are two or 
three things that I would like to clarify for the record.
    It is my understanding that the CARES Act gave BOP 
authority to place inmates in home confinement. The authority 
to initially place the inmate in home confinement was limited 
to the emergency period of the pandemic. As well as it was 
crafted, the CARES Act did not suggest that the placement would 
end when the pandemic's emergency period ended. I believe it 
was silent on that.
    Then came an opinion that was handed down--I think you 
referred to it--in the closing days of the Trump 
administration, January 15th, Office of Legal Counsel, and they 
concluded that when the emergency situation ended, then home 
confinement authority ended. I believe this current Attorney 
General sees it differently--or may see it differently. Let me 
make that clear, may see it differently. I am going to write 
him a letter and ask him to clarify where we are on this 
situation.
    I think Mr. Carvajal said as much earlier, that he is 
looking for some statutory guidance or other guidance of what 
to do now with this dilemma, and I hope we can clarify it.
    Mr. Carvajal, did I misstate the situation?
    Mr. Carvajal. Senator, I appreciate that. The CARES Act did 
not change the fundamental statute for home confinement, so we 
have been placing CARES Act home confinement under that. Again, 
we stress we want to follow the law. There are no legal 
impediments to bringing them back, but you are absolutely 
correct. It did not specify what to do with them. That is 
simply what we are saying, that we need to be given guidance on 
what to do with these individuals so that we can follow the 
law.
    Chair Durbin. Okay. I think that is where we come into 
play.
    Mr. Carvajal. Thank you.
    Chair Durbin. By requesting some opinion from the Attorney 
General, which would be my first effort, and if that does not 
clarify it to satisfaction, then we will have statutory 
response after that. Senator Blumenthal.
    Senator Blumenthal. Thanks, Senator Durbin. Welcome to the 
Committee, Director Carvajal.
    I want to talk a little bit about Danbury. You and I have 
discussed it before, and I know that you are prepared to talk a 
little bit about it today. You well know that the way we 
conquer this pandemic is to put vaccines into people's arms, 
whether they are in prison or anywhere else and whether they 
work in prison or anywhere else. In your written testimony, you 
have stated, "At this point, all Bureau staff have been offered 
one of the COVID-19 vaccines, and by April 19 all inmates will 
be eligible for a vaccine; by mid-May, we anticipate that all 
inmates will have been provided the opportunity to be 
vaccinated."
    We know that being offered or eligible for the vaccine is 
not the same as actually being vaccinated. That is the goal. 
Can you tell me what percentage of the Bureau of Prisons staff 
at FCI Danbury have been vaccinated as of today?
    Mr. Carvajal. Yes, Senator, I do not have the numbers 
specific to Danbury for vaccinations because it changes daily 
as we offer the rounds. I know that our total staffing is about 
51 percent who have been----
    Senator Blumenthal. Fifty-one----
    Mr. Carvajal. Who have accepted the vaccine. I can follow-
up with you on the specific numbers for Danbury, because, 
again, these things--numbers change daily, and I have 122 
facilities, Senator, so I do not have the exact numbers for 
every one of them.
    Senator Blumenthal. I would appreciate your following up 
and giving me that answer. Do you think you can do it in the 
next couple of days?
    Mr. Carvajal. Yes.
    Senator Blumenthal. Thank you.
    I have the same question. What percentage of the inmates at 
FCI Danbury have been actually vaccinated?
    Mr. Carvajal. Again, Senator, I do not have the exact 
number, or I cannot find it in my notes. The numbers, I will 
say, though, are on our public website. They change daily. We 
update it daily at 3 p.m., and both those numbers----
    Senator Blumenthal. I understand they change daily, so I am 
not asking you to give me that number as of this minute or 
maybe even as of this day. My understanding is that it is less 
than 50 percent at this moment; in fact, more like in the low 
40s.
    Mr. Carvajal. The acceptance rate in general is about 51 
percent for staff, so it probably mirrors that.
    Senator Blumenthal. Let me ask you--and I understand you 
are talking about the acceptance rate. I am interested in the 
vaccination rate. What are you doing to make sure that at FCI 
Danbury people are informed that this vaccine is safe and 
effective? It is safe and effective, whatever misinformation 
may be spreading through the prison, and we know that there is 
a lot of misinformation that spreads in prison. What are you 
doing and the Bureau of Prisons doing to inform accurately and 
correctly that this vaccine is safe and effective?
    Mr. Carvajal. As I stated earlier, Senator, we educate the 
staff and the inmates. We talk about it. We lead by example. I 
myself am vaccinated. I did a video out to the staff 
encouraging them. I did a follow-up video just as general 
information, encouraging them, looking forward to hopefully the 
vaccine playing a role in us normalizing our operations. Every 
location, including Danbury, has a local CEO and union 
leadership that walk and talk and encourage that.
    My staff just provided me the numbers, sir: 162 staff have 
been vaccinated to date and 323 inmates.
    Senator Blumenthal. What percentage is that?
    Mr. Carvajal. I do not know the percentage off my head, 
sir.
    Senator Blumenthal. You will get back to me with what the 
percentages are.
    Mr. Carvajal. Yes, we can.
    Senator Blumenthal. What more can be done to increase the 
acceptance rate?
    Mr. Carvajal. Senator, we are doing everything that we can 
within our limits. We have to respect people's rights. I have 
asked these questions, Senator, you know: Can I make them take 
the vaccine? The answer is no. It is under an emergency use 
authorization by the FDA. We have looked at every avenue. Short 
of compelling someone to do, which I cannot do at this point, 
we encourage it; we walk and talk. Ultimately, like with 
everything else, Senator, we have to respect people's rights to 
either take it or not.
    Senator Blumenthal. I respect people's rights, too, and I 
understand----
    Mr. Carvajal. Yes, sir.
    Senator Blumenthal [continuing]. that you have to respect 
them, and I commend you for it. If we come to you with some 
ideas for what more can be done, you would implement them?
    Mr. Carvajal. Yes, sir, we are always open to improving our 
operations, and if you have a good idea that will work for us, 
we are certainly open to listen to it.
    Senator Blumenthal. Is the Bureau of Prisons currently 
offering vaccinations--currently--at FCI Danbury?
    Mr. Carvajal. We are offering vaccinations as they come in. 
We do not make the determination of when we get them. That is 
done through the COVID Therapeutics Operation. We do have a 
staff member embedded in there. We work with them. As the 
vaccines roll out, they determine the amount; they determine 
where they go and how they will be distributed. We simply put 
them in the arms.
    Senator Blumenthal. My understanding is that vaccinations 
at FCI Danbury were stopped as of late February.
    Mr. Carvajal. No, I would have to follow-up and find out. 
If they were, Senator, it was simply because the distribution 
assigned to that area--again, I have 122 facilities. We do not 
make the determination. That is done by the Therapeutics 
Operation. They determine--it is kind of a hub-and-spoke 
system. They determine the amount that goes out.
    Senator Blumenthal. With apologies, I am going to interrupt 
you because my time is limited. Do you know whether FCI Danbury 
is currently offering vaccinations? My information is that they 
ceased doing so as of late February, and my question to you is: 
When are they going to resume?
    Mr. Carvajal. If they stopped offering them, Senator, it is 
because we have not been provided the vaccine to offer them. I 
assure you that when we get that vaccine through the normal 
distribution, it is offered. Our wastage is--our goal is zero 
wastage. A shot goes in an arm. If a staff member does not take 
it, they get the first; then it goes into an inmate. As it 
becomes available, we distribute it and we utilize it. It is 60 
percent----
    Senator Blumenthal. You are saying that the vaccine has not 
been available at FCI Danbury?
    Mr. Carvajal. I did not say that, sir.
    Senator Blumenthal. All right. Let me give you a chance 
then to clarify. The vaccine is currently not offered at 
Danbury, but it would be if you had the vaccine to provide.
    Mr. Carvajal. As the vaccine becomes available, as 
designated by the Therapeutic Operation for Danbury, it is 
absolutely offered. When it comes out distributed to them, we 
offer it.
    Senator Blumenthal. Let me move on, and I appreciate your 
following up with additional information on FCI Danbury. In 
January, Senator Murphy, Representative Hayes, and I sent a 
letter to Warden Easter. She was then warden. We specifically 
asked her to describe FCI Danbury's current medical staffing 
and capacity to provide medical care and treatment to 
incarcerated individuals who become ill due to COVID-19 or 
other underlying conditions. We were told, and I am quoting, 
"FCI Danbury medical staff are actively recruiting in an 
attempt to fill current vacant positions." "To fill current 
vacant positions." That answer was unresponsive.
    Can you tell me, Director, how many open positions there 
are at FCI Danbury and how long those positions have been open?
    Mr. Carvajal. Yes, Senator. The good news--you should like 
this--is that there are at 102 percent staffing, which is 
extremely rare in this agency. With that said, it is because 
they have overhired correctional officers. There are three 
medical vacancies.
    Senator Blumenthal. Three medical vacancies.
    Mr. Carvajal. Yes. Part of the problem there is that we 
have trouble competing with the local--obviously, there are 
probably higher-paying jobs in the area, so that is one of our 
challenges. Their numbers for COVID are low. As we speak, they 
have gone down. They have zero positive inmates and two staff 
inmates. To answer your previous question, because I am not 
good at math and I did not attempt to do this, but my staff 
did, thankfully, 60 percent of the staff and 43 percent of the 
inmates have been vaccinated. I apologize that I could not work 
that in my head that quick.
    Chair Durbin. Thank you, Senator Blumenthal.
    Senator Blumenthal. I appreciate that. Thank you, Mr. 
Director.
    Chair Durbin. Senator Cotton.
    Senator Cotton. Mr. Carvajal, you just revisited with 
Senator Durbin an exchange you had with Senator Grassley, so I 
want to revisit it as well about CARES Act home confinement. 
Under the CARES Act, the BOP received extraordinary authority 
to put into home confinement prisoners who would otherwise not 
be eligible for home confinement under prior law. Is that 
correct?
    Mr. Carvajal. Yes.
    Senator Cotton. Your testimony is that when the emergency 
period expires, the Bureau no longer has authority to keep 
those prisoners in home confinement. Is that correct?
    Mr. Carvajal. What I stated, Senator, is, as written, the 
statute for home confinement and our policies, it is a reentry 
transitional program made for 10 percent of their time or 6 
months in home confinement, up to 12 months community 
placement. There are several inmates currently on home 
confinement under CARES Act who will fall outside that 
guideline. In order for us to apply the statute appropriately, 
we need the guidance or it needs to be changed. That is what I 
was trying to explain.
    Senator Cotton. You said you have about 4,500 persons under 
home confinement who----
    Mr. Carvajal. Currently on CARES Act.
    Senator Cotton. Who would otherwise not be there, but are 
there because of the CARES Act?
    Mr. Carvajal. At this point in time in their incarceration, 
they would not be because of that. It does not mean they would 
not be eligible at some point.
    Senator Cotton. Yes. I understand, too, that some of those 
who are lawfully under home confinement because of the CARES 
Act will time into eligibility for home confinement under the 
prior law, 10 percent of the sentence, 6 months, whichever is 
lesser. That is correct?
    Mr. Carvajal. That is correct. About 2,400 of them are over 
a year, so half, roughly 50 percent. If you extend that out to 
18 months, it drops the number to about 1,800, and the reason I 
say that is we could work with the plan, we are working with 
DOJ. Part of our recommendation would be working with something 
like that. Again, I stated earlier we want these people to be 
successful. They are coming back to our community, obviously, 
or we would not have put them out. To bring them back for 2 or 
3 or 4 months, you know, we would take that into consideration, 
but, again, we work within the law. All of those things need--
we are working with DOJ on recommendations on how to do that 
should the need arise.
    Senator Cotton. Surely for that segment of that population 
that has years left in their confinement, it cannot be the 
Bureau's position or the Department's position that they can 
now stay on home confinement just because they had the good 
fortune of being released to it during the pandemic.
    Mr. Carvajal. Well, Senator----
    Senator Cotton. Or to use the statutory phrase, "during the 
covered emergency period once that period ends."
    Mr. Carvajal. I understand, Senator. That is why I am 
asking the question. That is why we are trying to clarify this. 
There are roughly 310 with over 5 years who met the criteria. 
Obviously, they are low risk, or we would not have placed them 
out. In order to be compliant with statute, we have to address 
that. That is simply what we are saying.
    Senator Cotton. I agree, and I think the statute is 
perfectly clear on that.
    I want to turn to one of the most pernicious problems that 
I believe you face and that our State and local prisons and 
jails face as well, and that is the problem of contraband 
cellphones. The Inspector General has listed this as one of 
your Bureau's top challenges, something that I have heard about 
repeatedly from our corrections officers and sheriffs in 
Arkansas. The reason for that is, of course, that the 
contraband cellphone enables every other kind of contraband--
weapons and drugs and anything else. These cellphones are 
sometimes used to run massive drug-trafficking rings or order 
murders, extort people, intimidate witnesses. I will give you 
just a couple of examples.
    One, the family of Joseph Michael Wood, an inmate in a 
maximum security prison in Alabama, inmates used contraband 
cellphones to extort his family, demanding money to guarantee 
his safety. After his family had had enough and refused to 
answer, Mr. Wood was murdered.
    Another example was the family of correctional officer 
Osvaldo Albarati, who was murdered in a hit directed by inmates 
through contraband cellphones. His offense in their eyes? He 
had been performing his job and confiscating contraband 
cellphones.
    I have introduced in the last Congress and I will introduce 
again soon--and I hope to have bipartisan support--the 
Cellphone Jamming Reform Act. It would explicitly make clear 
that State prisons can use targeted jamming to block cellphone 
signals in prison housing units. I have been disappointed at 
the telecom companies' resistance to this legislation, but I 
hope they are going to come to their senses as more of these 
cases arise.
    Could you tell us, Director Carvajal, what steps the Bureau 
is taking to address this issue and, in particular, pilot 
programs you have had and what you have learned from those 
pilot programs?
    Mr. Carvajal. Yes, thank you, Senator. Pre-COVID, if you 
would have asked me the question what our number one problem 
is, we always answer drugs, drones, and cellphones. They are 
all connected, as you alluded to. It is a severe problem. We 
appreciate the support from Congress in our budget. We got 
appropriated approximately $12 million to conduct some pilots. 
We have two ongoing now. One of them is at FCI Edgefield. It is 
a pilot for managed access, which is one of the types, and then 
as you mentioned, jamming, we have a pilot ongoing at USP 
Atlanta and in part of our Florence complex. We are also going 
to use some of that funding designated to jam a complex. I do 
not remember off my head which complex, but that is multiple 
institutions.
    It is very much helpful. The reason we are running multiple 
pilots on different--again, Federal Government, certainly you 
are aware that we have to be fair and assess these. That is 
what the point of the pilot is. It depends on who you talk to, 
which technology is better or not. We certainly appreciate the 
support, and it is a severe problem.
    Senator Cotton. I will be eager to hear all the results of 
those pilots and to share them with State officials. I know the 
telecom industry had advocated for so-called managed access 
technology.
    Mr. Carvajal. Yes.
    Senator Cotton. I would leave it in the hands of State 
officials to make their decisions. I want to point out a third 
case in which a South Carolina prison was using a managed 
access program, and still a contraband cellphone was used in a 
blackmail scheme that ultimately resulted in a needless death. 
To me the easiest way to solve this problem is just to jam 
these cellphones. I appreciate the work you are doing on this 
and that you will share with the Congress and share with the 
State counterparts.
    I also want to thank you and all of your officers. I have 
been at the facility at Forrest City. It is an incredibly 
difficult job, one of the toughest jobs in some of the worst 
conditions we have with truly violent offenders, and I want to 
commend you and all the men and women that work in the Bureau 
for your service to our country. Thank you.
    Mr. Carvajal. Thank you.
    Chair Durbin. Director Carvajal, I would like to ask a 
question about the issue of solitary confinement, and that, of 
course, is described in many different ways. I believe 
"restrictive housing" is the term that BOP uses. I have heard 
"administrative separation." There are a number of different 
categories. It usually means that an inmate is confined to 
their cell for up to 22 hours a day and given opportunity to 
leave the cell for exercise or other reasons for maybe 1 or 2 
hours. Is that a general definition that fits with BOP 
guidelines?
    Mr. Carvajal. Yes, Senator.
    Chair Durbin. I would like to ask you this. First, I am 
starting with a premise I want to see if you agree with based 
on a lifetime of service in correctional institutions and your 
current position. The Department of Justice issued a report in 
2016 that noted that the use of restrictive housing "can cause 
serious, long-lasting harm" and should be "used only as 
necessary and never as a default situation."
    Do you accept or disagree with that conclusion?
    Mr. Carvajal. Yes, Senator, it is a bit more difficult 
because, as you said, I have spent 29 years in the system. It 
is our jail within the jail. I am not--we have always looked 
for alternatives and other ways to do it. It should be a last 
resort. There are people who under circumstances because of 
behavior or violence, things like that, there is going to be a 
need for it. We can do better, and we have done that in the 
Bureau of Prisons. We found alternative ways. We certainly try 
to do more out-of-cell programming for the reasons you stated, 
but let me give you a quick example of the irony here.
    Much of the scrutiny we received during COVID was how we 
were isolating inmates. The word in and of itself, "isolation," 
it requires us to place someone in a cell by themselves for 
medical reasons. There is the simple irony that we are being 
scrutinized for restrictive housing, yet you want us to 
medically isolate somebody, and then we have to balance that.
    There is a difference. We have found alternatives. In fact, 
your facility in Thompson is serving that purpose. They are 
called--half of that mission, as you are well aware, Senator, 
is the special management unit. The other half of that, I am 
proud to say, is a reintegration housing unit. There are 700 
inmates on that side in the reintegration housing unit that 
would otherwise be in special housing based on their issues, 
whether it is management or protective custody. So we utilize 
that facility. Half of that mission is to prevent and keep 
people as much as possible out of restrictive housing.
    We are continuously looking at this. Our numbers have gone 
down. They were well over 10,000, as you are well aware. I know 
this is an issue that has been close to you and you monitor it. 
Pre-pandemic, we were already dropping them down. In my prior 
position as Assistant Director, I was supporting Director Hawk 
Sawyer's vision to lower those numbers, and that is how we came 
up with the reintegration housing unit.
    We are looking at ways to lower that number and 
alternatives, but it is something serious, and we get inmates 
out of their cell as much as possible, and we certainly have 
procedures to check on them routinely and provide them the same 
services.
    Chair Durbin. Let me add for the record, so my position is 
clear, that I visited a maximum security prison, State prison, 
in Illinois and went into an area where there was virtual 
solitary confinement. They were just a few exceptions. I, eye 
to eye, spoke to the inmates, and I will never forget one who 
looked at me like a mild-mannered college professor. I said to 
him, "What are you here for?" He says, "Originally or since I 
have been in prison?" I said, "Today." He said, "Well, I told 
them if they put someone in the cell with me, I would kill him, 
and I did." He just said it that matter of fact. I have since 
explored the case. That is exactly what happened. There is no 
doubt that that man should be in solitary confinement until 
such time there is assurance he is not a person that will harm 
another person with him. I understand that there are people who 
fit into that category.
    I am trying to weigh what the Department of Justice said in 
2016 with the cost of solitary confinement to someone who is 
not in a desperate situation like the one I described.
    I hear you saying, "When we have to deal with social 
distancing, I am separating some people for medical reasons," 
it sounds like you are saying, "and I do not want those counted 
against me in terms of efforts to reduce restrictive housing." 
Is that a fair summary of what you said?
    Mr. Carvajal. Yes, Senator. I want to reiterate the 
challenges that we undergo in our environment. You know, 
certainly if we can find alternative methods to house somebody, 
we are always going to do that. Having been a warden many years 
and working through this, there are always, as you describe, 
there are always people who are going to have to be there for 
everyone's safety. Most of those folks have committed some kind 
of misconduct or something, and we are finding alternative 
methods to deal with that, as appropriate, and we do that when 
we can. We are committed to doing that going forward.
    Chair Durbin. I want to thank you for being here, and I am 
sorry it took 2 years. We should be meeting on a more regular 
basis. The participation by members of the Committee is an 
indication that we all have an interest in what you are doing. 
It is very critically important to the security of America and 
to proving our humanity in the process. I thank you for being 
here today.
    I am going to conclude the hearing by saying first I have a 
number of statements that I will include in the record: the 
testimony of the Sentencing Project; Families Against Mandatory 
Minimums; Council of Prison Locals; Justice Action Network; 
Clara LeBeau, the grandmother of Andrea High Bear; Medical 
Expert Home Vendors, Doctor Home Vendors; and a number of other 
organizations. Without objection, the statements will be 
included.
    [The statements appear as submission in the record.]
    Chair Durbin. The record will close 1 week from today.
    Director Carvajal, thanks for joining us today and for your 
testimony. A number of members have asked for follow-up 
information, and I trust you and your staff will comply. I look 
forward to working with Attorney General Garland, the Justice 
Department, Bureau of Prisons, and partners like Ranking Member 
Grassley to confront the many challenges the Bureau of Prisons 
faces, and the meeting will stand adjourned.
    Mr. Carvajal. Thank you, Chair.
    [Whereupon, at 12:20 p.m., the Committee was adjourned.]
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