“Don’t let yourself or your property get mixed up in the world of illegal drugs,” US Attorney Ron Parsons of South Dakota said at the January 14, 2020 sentencing of a Native American woman who used a house to sell less than 10 grams of methamphetamine. “It ends badly.”
Indeed, the criminalization of Andrea Circle Bear, a member of the Cheyenne River Sioux tribe, by way of a law sponsored and partially penned by Joe Biden, the presumptive Democratic presidential nominee, did end badly. On April 28, she died of COVID-19 after giving birth to her child while on a ventilator, just a few months into her two-year sentence.
Circle Bear had been convicted under the “crack house” statute established in the Biden-driven 1986 Anti-Drug Abuse Act that prohibited “knowingly open[ing] or maintain[ing] any place for the purpose of manufacturing, distributing, or using any controlled substance,” the bill’s text reads. It emerged during the national crack panic, but was later used (at Biden’s urging) to target people associated with MDMA. In Circle Bear’s case, it was methamphetamine. She was found to have been using a house in which she did not live for the sale of less than 10 grams of meth in April 2018, according to the case’s statement of facts.
She was the first federally incarcerated female casualty of the coronavirus, which has proven especially deadly for people in prisons, where it has spread like wildfire. Figures released by the Bureau of Prisons show that 70 percent of 2,700 tests came back positive, despite much lower overall reported infection rates for the 171,000 BOP population, which AP says could suggest a major lapse in detection.
Inside, social distancing is near impossible. “Incarcerated individuals share bathrooms, sinks, and showers. They eat together, and sleep in close proximity to each other. They often lack access to basic hygiene items, much less the ability to regularly disinfect their living quarters,” described the Federal and Community Public Defenders in an April 1 letter to Attorney General William Barr, calling on him to decarcerate prisoners for public health.
On March 28, Patrick Jones became the first man—and first person—to die of COVID-19 while serving a federal sentence. He was incarcerated because of Biden’s legislation that established disparate, constitutionally questionable mandatory minimum sentences for crack cocaine charges, which have disproportionately impacted Black Americans. Under the law, which has since been reformed by the Fair Sentencing Act of 2010 and the First Step Act of 2018, a sentence for the possession of 500 grams of powder cocaine with intent to distribute was five years, while only five grams of crack cocaine carried the same punishment—a 100-to-one ratio.
A Black man, Jones was at FCI Oakdale for a 27-year sentence for crack and powder cocaine possession charges, made possible by Biden’s legislation. Its length was further maintained by judges who denied his requests for commutation under President Barack Obama’s executive clemency initiative as well as the First Step Act of 2018, which Filter has shown to continue to fail other Black men sentenced through the racist crack sentencing disparities. He died a month after the judge rejected his most recent appeal.
“Their stories lay bare the gross inequities and problems with the war on drugs—and how after 40 years it continues to be used as a tool for social control of Black and Brown communities,” wrote the Leadership Conference on Civil and Human Rights.
In the lead-up to Biden’s 2020 presidential bid, he publicly apologized for his role in driving the war on drug users. “We were told by the experts that ‘crack, you never go back,’ that the two were somehow fundamentally different,” said Biden in January 2019. “It’s not. But it’s trapped an entire generation.”
During the pandemic, with incarcerated people one of the hardest hit groups, Biden has the opportunity to use his platform to undo some of the damage. Advocates are calling on federal, state and local governments to take action. In response to Circle Bear’s death, Families Against Mandatory Minimums (FAMM) President Kevin Ring called on the Department of Justice to “investigate why this happened and take steps to ensure that it never happens again.” In his statement. Ring added, “Ms. Circle Bear was sentenced to 26 months in prison, not the death penalty. We have to do better.”
Lawmakers are also calling for decarceration by the Bureau of Prisons to mitigate the spread of SARS-CoV-2 and the consequences of developing COVID-19. “Andrea Circle Bear should be alive. Holding her newborn baby in her arms. Instead, she died in prison from #COVID19. Every day @OfficialFBOP refuses to act puts lives in danger,” tweeted Congresswoman Ayanna Presley, a progressive representative who supports criminal justice reforms like the decriminalization of sex work.
But Biden does not seem to count himself among those seeking the safety of incarcerated people. His “Plan to Combat COVID-19” makes no mention of how he’d address the spread of the virus in carceral settings. In an April 9 Medium post, he did recognize that Black and Native people, like Jones and Circle Bear, are disproportionately hit by infections and deaths, yet he failed to make a connection with mass incarceration, in which both of those racial demographics are overrepresented.
Biden’s press representative did not respond to Filter‘s request for comment.
A few days after confusion was sparked by an abrupt shift in release eligibility for home confinement on April 20, BOP updated its guidelines to include incarcerated people who have completed at least 25 percent of their sentences and who have less than 18 months remaining. Before that, Attorney General Barr had released two other guidelines, one on March 26 and another on April 3.
Despite these policies, less than 1 percent of all federal prisoners have so far been released, according to data analyzed by the Marshall Project. “They don’t want to let people out,” David Patton, chief federal public defender for metropolitan New York City told the criminal justice news site. “It’s not in their DNA.”
The failure of the federal government to take bold steps to keep incarcerated people safe will continue to have mortal consequences. Predicting more deaths like that of Circle Bear, the Federal and Community Public Defenders had warned that Jones’s death “will surely not be the last.”