Jurisprudence

The DOJ’s COVID-19 Nursing Home Inquiry Is Nakedly Corrupt

Barr seated, talking in front of a mic
Attorney General Bill Barr speaks at the Eisenhower Executive Office Building in Washington on Aug. 4. Nicholas Kamm/AFP via Getty Images*

Last week, the Department of Justice sent widely publicized letters to the governors of four states—Michigan, New York, New Jersey, and Pennsylvania—seeking information about nursing homes and coronavirus infections. The DOJ justified the request as part of an evaluation of whether to open a formal investigation under the Civil Rights of Institutionalized Persons Act. This does not appear to be an ordinary independent investigation, though. In fact, there’s every reason to believe the DOJ letters are partisan attacks on opponents of the president.

The backdrop for all this is the COVID-19 pandemic’s devastating effect on life in nursing homes. The coronavirus pandemic has hit nursing homes hard and highlighted the inhumanity of our system of shunting away elderly and disabled people in isolated congregate institutions. The New York Times estimates that at least 68,000 people have died due to COVID in nursing homes and other long-term care facilities—41 percent of the total number of deaths attributable to the virus in this country.

The devastation underscores a truth we have known for years: Institutions separated from the mainstream of society—nursing homes, long-term care facilities, psychiatric hospitals, or jails and prisons—cause intense harm to the people who are confined there. They rigidly control the lives of their residents, limiting such mundane daily liberties as the choice of when to turn out the light at night or with whom to eat dinner. They often limit opportunities for employment, education, and personal development. And they frequently harm the physical and mental health of those who must live there—with the tragic consequences we are seeing today.

Government investigations of the poor conditions at congregate institutions—and efforts to promote community-based alternatives so that individuals would not be forced to live in those facilities—would be very welcome. The coronavirus pandemic makes the need for such action especially acute.

That is not, however, what the DOJ’s actions were about. Instead, the department is acting in a transparently political manner. Throughout the pandemic, the DOJ has failed to take key steps to use CRIPA to protect residents of congregate facilities. Last week’s letters, aimed at governors who have vocally criticized President Donald Trump’s response to the pandemic, and timed amid the Republican National Convention, will do nothing meaningful to protect those residents.

Nursing homes are key locations for the spread of COVID-19, but the DOJ’s authority under CRIPA extends to only a tiny slice of those facilities. The statute applies only to institutions that are operated by state or local governments. But the overwhelming majority of people in nursing homes are in privately operated facilities. In New York, for example, only 28 out of the state’s more than 600 nursing homes are public. And it’s far from a coincidence that all four governors who received these letters are Democrats. The state with the worst per capita coronavirus death rate in nursing homes, according to federal data, is Massachusetts—but its Republican governor received no similar letter. Same for Mississippi, Maryland, and Arizona—all are in the top 10 in death rate, all have Republican governors, yet none received a DOJ letter. New York and Michigan rank 11th and 12th on this metric.

According to the Times data, Florida has experienced more nursing home deaths (both absolutely and as a percentage of total COVID deaths) than has Michigan, yet the DOJ actually singled Florida out for praise in the press release it issued last week. The only reasonable explanation for the disparate treatment is that the Trump administration perceives Democratic Gov. Gretchen Whitmer as an enemy and Republican Gov. Ron DeSantis as a friend.

Compared with its narrow authority over nursing homes, the DOJ has the power under CRIPA to address conditions in all jails and prisons. And jails and prisons are still the sites of the nation’s largest coronavirus outbreaks. In one of the most serious outbreaks, Marion Correctional Institution in Ohio has reported more than 2,400 cases, affecting nearly its entire population. UCLA’s COVID-19 Behind Bars Data Project has tallied over 1,000 virus-attributed deaths of jail and prison inmates and staff. But the DOJ hasn’t lifted a finger to enforce the law there. To be sure, there’s been no CRIPA letter to Ohio’s Republican governor, Mike DeWine, to address the crisis in his state’s prisons.

We have spent our legal careers advocating for the rights of individuals who have been forced—by legal dictate or by the lack of other options—to live in congregate facilities. Much of our advocacy has involved efforts to reduce our nation’s reliance on large institutions by promoting robust community-based alternatives to confinement. As a political appointee at the Department of Justice during the Obama administration, one of us led the government’s CRIPA enforcement and used that authority to promote deinstitutionalization. As career civil servants at the Department of Justice during the 1990s, both of us worked on CRIPA cases involving a range of settings, including jails, prisons, and mental health and developmental disability facilities. We welcome efforts to move people from congregate facilities and to improve conditions where decarceration is pending or impossible. But the department’s action is transparently political and plainly not undertaken in good faith.

Correction, Aug. 31, 2020: Due to an editing error, the photo credit originally misspelled Nicholas Kamm’s first name.

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