By Jody Godoy

Law360 (April 24, 2020, 5:17 PM EDT) -- Two senators expressed concern on Friday that a lack of testing may mean novel coronavirus infection rates in federal prisons are higher than they seem and have urged the U.S. Department of Justice's inspector general to investigate.

Sens. Dick Durbin, D-Ill., and Chuck Grassley, R-Iowa, asked Inspector General Michael Horowitz, in a letter on April 21, to expand an ongoing remote review of whether Bureau of Prisons facilities are following "best practices" to curb the spread of the virus. The senators made the letter public on Friday.

Durbin and Grassley expressed concern that the BOP is "significantly underestimating" the number of infections in the prison system because it "has not yet conducted the number of tests on staff or inmates appropriate for facilities where a highly contagious virus can be easily spread."

The letter was made public the same day the BOP announced it had started using rapid testing at some facilities with widespread transmission. The BOP said it has 10 ID NOW rapid-testing tools developed by Abbott and is scheduled to receive 10 more next week.

The BOP also said it plans to start testing asymptomatic inmates at some facilities, a move likely to increase the number of positive cases detected.

As of Thursday, the BOP reported 620 inmates and 357 staff as having tested positive for the virus. The cases are spread over 49 BOP-run facilities and 16 halfway houses, with 12 facilities reporting a dozen or more inmates infected.

In their letter, Durbin and Grassley also asked Horowitz to investigate whether the BOP is following provisions in a pandemic relief bill and recent pronouncements from Attorney General William Barr instructing the agency to release some inmates to home confinement to thin the prison population.

Barr directed the BOP last month to increase the use of home confinement, reiterating in a memo on April 3 that the BOP should "maximize" the use of home confinement for vulnerable inmates at any facility materially affected by the virus. Congress expanded the BOP's ability to send inmates to home confinement in the Coronavirus Aid, Relief, and Economic Security Act.

"We are concerned that BOP is not fully and expeditiously implementing relevant statutory authority and directives from the attorney general," the senators wrote.

In addition, the senators asked the inspector general to look into whether the BOP has given the public accurate information on the spread of the disease behind bars and whether inmates, including those in quarantine, are able to communicate with their lawyers and families.

At the same time, other senators worried that releasing inmates will affect public safety. A group of Republican senators led by Ted Cruz and John Cornyn of Texas urged Barr on Thursday not to release violent offenders, worrying that advocates for release had not weighed the potential effect on communities.

While Congress has considered the legislative and oversight dimensions of the crisis, courts and the BOP have been inundated with requests from inmates seeking release amid some dire predictions about the potential death toll.

In New York, the epicenter of the disease in the U.S., a lawyer for medically vulnerable inmates at the Metropolitan Detention Center told a court on Friday that sick inmates are being overlooked.

During a hearing in another case on Friday, attorneys for inmates at the MDC and its sister facility, the Metropolitan Correction Center, said they are still running into problems getting access to their clients.

A spokesperson for the BOP did not immediately reply Friday to a request for comment on the senators' letter.

--Editing by Janice Carter Brown.

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