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Could Andrea High Bear’s Death Have Been Prevented?

She was a pregnant mother of five, transferred to a federal prison facility in the middle of a pandemic. And her death from the coronavirus a month later, advocates say, is the result of multiple failures in the criminal justice system.

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Andrea High Bear stood outside in the South Dakota cold, waiting on the airlift that would take her to a federal prison facility in Texas. It was mid-March, and the 30-year-old, seven-and-a-half-months pregnant woman was being sent more than 1,000 miles away to serve out her sentence on a low-level, nonviolent drug offense.

About a week earlier, with the coronavirus rapidly spreading around the globe, the World Health Organization had declared a pandemic, and the U.S. Bureau of Prisons had announced it was restricting the movement of those in the federal prison system in the hopes of containing the outbreak.

But neither declaration made a difference. Andrea High Bear was still put on an airlift and sent to prison in Texas.

And a little more than a month later, she was dead, a victim of the coronavirus.

Andrea High Bear loved baking bread and cinnamon rolls and spending time with her children, her grandmother said. (Courtesy of the High Bear Family)

“What is so outrageous about this case is there’s failure at every single point in the criminal justice system,” said Brett Tolman, a former U.S. Attorney in Utah who now works in public policy and government reform.

Activists for months have been pleading with authorities at the local, state, and federal levels to release on home confinement those who are most susceptible to catching the virus and aren’t a threat to public safety. But not enough action has been taken inside the nation’s crowded jails and prisons. There are now nearly 30,000 cases of the virus among those incarcerated in state and federal prisons alone and 415 deaths — with both numbers rapidly rising.

What makes High Bear’s death so shocking, criminal justice experts say, is how easily it could have been prevented.

“We could have saved her life,” said Holly Harris, President of Justice Action Network, in a New York Times op-ed, “and instead we sent her to the deadliest place on earth right now: an American prison.”

‘We Had Big Plans’

When the U.S. Department of Justice and BOP released a press release on High Bear’s death, they recited the facts of her case: Andrea Circle Bear, as she was formerly known, had been sentenced in South Dakota to a 26-month sentence for maintaining a drug-involved premises. She had been in custody at Federal Medical Center Carswell in Fort Worth, Texas, since March 20. She got sick, was taken to the hospital, and was put on a ventilator March 31. She had her baby a month early, via cesarean section, April 1. She tested positive for the coronavirus April 4. She died April 28.

But there’s more to her story.

Andi, as she was known by her family and friends, was a member of the Cheyenne River Sioux Tribe and lived on the reservation in Eagle Butte, South Dakota. She was a mother of five, with another on the way, and doted on her four boys and one girl, all under the age of 10, said her grandmother Clara LeBeau.

“She really adored them and did everything for them,” LeBeau said of High Bear, whose Facebook page is filled with photos and anecdotes of her kids.

LeBeau said she was particularly close with High Bear because she was her first grandchild. She taught her how to bake bread and cinnamon rolls, which grew to be a favorite hobby of High Bear’s.

Andrea High Bear’s grandmother Clara LeBeau — pictured with her new great-grandchild, Elyciah Elizabeth Ann High Bear — drove down to Texas from South Dakota to bring the newborn home. (Courtesy of the High Bear Family)

The two spent hours talking about the future. After High Bear was indicted in March 2019 on charges stemming from two undercover drug buys the prior year, she set out to turn her life around. Because the reservation banishes any member convicted on a drug charge, High Bear and LeBeau talked about how she was going to make a home for her family off the reservation, possibly in nearby Pierre, where she grew up.

High Bear told her grandmother she thought she could possibly be out of prison by the end of 2020 with time served.

“We had big plans, her and I, for her and her family,” LeBeau said. “She was going to be divorced and be on her very own. She was going to go to college. She was going to start all over.”

In her final Facebook post, dated Sept. 22, 2019, High Bear wrote: “Bathing my babies getting them ready for bed saying my prayers, watching my babies, soaking in the time I have with them, i cant do nothing but pray for strength to get me through the difficult time im going to have thats yet to come, i cant wait to be able to have a new start once this is all over...” She included the hashtags #MethRuinedMyLife, #MyBadChoices, and #ItsMyOwnFaultButImNotABadPerson.

A Rarely Prosecuted Charge

Criminal justice experts say the system failed High Bear from the beginning by pursuing such a low-level charge. Tolman, the former U.S. Attorney, said he’s aware of the statute outlawing “maintaining a drug-involved premises” — which means a drug deal took place on property where the accused was staying — but in his 20-plus years in law, he’s never seen it brought before a federal court.

“Prosecutorial discretion should have been exercised to not bring a case like this against a woman who may not have had the ability to prevent what was going on in [the] home,” Tolman said.

There are 450,000 people currently incarcerated on nonviolent drug offenses in the nation’s jails and prisons — and reform advocates across the political spectrum believe that’s not where they belong. Throwing someone who has a drug problem behind bars simply exacerbates the issue, said Harris of Justice Action Network.

Kimberly Craven, Legal Director for the ACLU of South Dakota, North Dakota, and Wyoming, and a member of the Sisseton-Wahpeton Oyate, said the drug crisis is insidious in Indian Country, where High Bear lived, and there’s not enough access to treatment.

“I would say it’s hard to find a person whose family hasn’t been touched by this problem — alcohol, prescription drugs, methamphetamine, it runs the gamut,” Craven said. “What can be done? We don’t have a lot of alternative treatment facilities here, where instead of being incarcerated, she could get the help she needed.”

The Sentencing

On Oct. 7, after pleading guilty, High Bear was booked into the Hughes County Jail in Pierre, where she stayed until shortly after her January sentencing hearing. LeBeau wrote a letter to the judge, asking that he not be hard on her granddaughter, who was in the second trimester of her pregnancy.

“Even if she was confined to home or a strict probation,” LeBeau said, “that would have helped.”

But on Jan. 14, High Bear was sentenced to 26 months in federal prison, with the court recommending placement in a BOP medical center — of which there is only one in the federal system for women — because of her pregnancy.

There are two ways High Bear might have been saved at this point, advocates say. The judge could have suspended her sentence so she didn’t have to report to prison until after the child’s birth. Or he could have approved LeBeau’s request and sentenced High Bear to home confinement.

Maritza Perez, Director of the Drug Policy Alliance’s Office of National Affairs, said her organization’s stance is that nobody should be put in jail or prison for drug activity, let alone someone who is pregnant and medically vulnerable. “Andrea’s case is representative of the harshness of our drug sentencing laws,” Perez said. “She was not a threat to the public. She could have served out any sentence at home.”

High Bear’s crime — and where it took place — also made her uniquely eligible for punishment by the federal government.

If a person commits a crime on an Indian reservation that’s under federal jurisdiction and the crime is part of the Major Crimes Act, which all drug felonies are, it’s automatically a federal case, said Craven of the ACLU. “That’s why Indian people end up in federal penitentiaries,” she said. The community’s addiction problem, coupled with poverty, a lack of opportunity, and the federal jurisdiction factor is “a hornet’s nest of problems.”

The Transfer

After her sentencing, High Bear was placed in the custody of the U.S. Marshals Service and was sent to Winner City Jail — about three hours south of Eagle Butte — for holding. She knew she’d be transferred to a federal prison, but neither she nor her family had any idea when. She was nervous, LeBeau said; not only was High Bear seven and a half months pregnant, she was in a high-risk pregnancy, as all five of her prior children were born via C-section.

Despite that, High Bear was cleared by medical staff to fly, which baffled LeBeau. “Don’t they know you’re high-risk?” she asked her granddaughter. “Yes, they know,” High Bear said.

It was around this time when the severity of the coronavirus was becoming more apparent. Having spread to 118,000 people in 114 countries, the coronavirus was officially declared a pandemic by the World Health Organization on March 11. Two days later, the BOP announced it was taking actions within its facilities to “mitigate the spread of COVID-19.” Knowing High Bear’s high-risk pregnancy status, this could have been an opportunity for High Bear to receive compassionate release, Tolman said.

29,251
Number of people incarcerated in state and federal prisons who have tested positive for the coronavirus as of May 20. Source
64
Number of people incarcerated in federal prisons who have died from the coronavirus as of May 26. More than 4,700 have tested positive. Source
70%
Proportion of those tested for coronavirus in the federal prison system who were positive, according to an April 29 report, though only 2,700 of the system’s 150,000 incarcerated people were tested. Source

But on March 20, two months after her sentencing, High Bear stood shivering as she waited for the airlift to take her to Federal Medical Center Carswell in Texas — a prison of 1,625 women.

Making her leave the Winner City Jail was a critical mistake, said Craven of the ACLU, as no coronavirus cases had been reported there.

In an emailed statement, Justin Long, a spokesman for the BOP, said that sending High Bear to Texas was, in fact, in her best interest. “It is apparent that the court felt that placement of Ms. Circle Bear in a federal medical center was in her best interest as FMC Carswell would have been able to provide the court recommended drug treatment and appropriate medical care for her pregnancy,” he wrote.

The Illness

LeBeau didn’t know her granddaughter had been transferred to Texas until she got a phone call from High Bear from the facility. In that call, High Bear told LeBeau that she was going to be quarantined for 14 days because of the pandemic.

On March 26, following Congress’ approval of the CARES Act — the third coronavirus relief package to come out of Washington — Attorney General William Barr directed the BOP to opt for home confinement for at-risk people incarcerated in federal prisons whenever possible.

This meant the BOP could have immediately transferred High Bear, Tolman said.

Long, with the BOP, said in his statement that because High Bear fell ill shortly after arriving at the prison, “her medical care precluded her consideration for home confinement, which given her very recent arrival, was unlikely to have been granted.” He said that the BOP has released or transferred to the community “every pregnant inmate who is eligible for such placement.”

Unbeknownst to LeBeau, her granddaughter had been sent to a hospital in Fort Worth eight days after she arrived in Texas for “symptoms related to her pregnancy,” the BOP reported.

High Bear was returned to prison that same day, and though the BOP said she did not have coronavirus symptoms at this point, a whistleblower’s letter to Sen. John Cornyn from the president of the union for correctional officers at FMC Carswell said that the BOP “was aware of this inmate being a suspected symptomatic case” on March 28.

On March 31, LeBeau received a phone call from a doctor at John Peter Smith Hospital in Fort Worth asking for confirmation that LeBeau would be taking care of High Bear’s baby once it was born — an arrangement she and her granddaughter had made before High Bear was sentenced. Then the doctor handed the phone to High Bear.

“I heard her cough, and then she got on the phone, and I could tell from her voice she’d been crying,” LeBeau said. “That’s when she told me that she was sick.”

“We had big plans, her and I, for her and her family,” Clara LeBeau said of her granddaughter, Andrea High Bear, pictured. “She was going to be divorced and be on her very own. She was going to go to college. She was going to start all over.” (Courtesy of the High Bear Family)

High Bear had been sent back to the hospital with a fever, dry cough, and respiratory distress — symptoms of the coronavirus. She told LeBeau that for four days she had been feeling sick and had complained to authorities about needing help but was ignored.

“She was asking about her children,” LeBeau said through quiet sobs. “I told her not to worry about them, that they were being taken care of. I told her not to be afraid and she should pray. And I would pray. I prayed with her on the phone.”

LeBeau didn’t know it would be the last time she would hear her granddaughter’s voice. “I wish I would have talked to her longer,” she said, weeping. “We said we loved each other and [she said] to tell her kids she loved them. And that was the last time.”

The next day, High Bear’s baby girl was delivered one month early via C-section and LeBeau received the news from the hospital — along with the fact that High Bear had been put on a ventilator before the surgery was performed.

In the weeks before the infant was released to LeBeau, the hospital kept in touch with her from afar. On one occasion, the staff arranged for LeBeau to see High Bear on a video chat. “I was able to see her; she looked like she was asleep,” LeBeau said.

LeBeau was unable to see High Bear when she drove down to Texas to pick up the baby in mid-April — the prison said she wasn’t permitted — but she was able to talk to High Bear one last time later in the month when medical staff held up a phone to High Bear’s ear. “I was able to pull myself together,” she said. “And tell her that we were all here and that she had a baby girl and that we loved her.”

At 8:23 a.m. April 28, High Bear died, and her death made headlines. She was the first woman in a federal prison to die from the coronavirus.

The Aftermath

Public outrage quickly followed. The organization FAMM, which proposes policy reform based on the experiences of those incarcerated in federal prisons, said High Bear’s death was a “national disgrace” and called for an immediate investigation.

The ACLU called for all pregnant women — in local, state, and federal facilities — with less than a year left on their sentences to be released.

And Harris’ New York Times op-ed called for new legislation from Congress requiring — not just recommending — that the DOJ and BOP take certain actions to release at-risk people from federal prisons. She said the legislation should be named after High Bear.

“It’s really sad that it takes a case like this to lead the transformational change,” Harris said, “but our hope is her death isn’t in vain.”

At her home on the reservation in Eagle Butte, LeBeau is caring for her great-granddaughter, Elyciah Elizabeth Ann High Bear. The infant’s five siblings — who are being cared for by High Bear’s father — met their baby sister through a window after LeBeau arrived home from Texas and was in self-quarantine.

While the youngest children don’t realize what has happened to their mom, the two oldest ones have taken it hard, LeBeau said.

On Thursday, May 7, as rain fell steadily in Eagle Butte, Andrea High Bear’s immediate family sat inside a funeral home as they said goodbye. The masks they wore, the distance between their seats, and the limit on who could attend was a stark reminder of the virus that took her. A slideshow flashing images of High Bear as a baby, in class pictures, and laughing with family members was accompanied by the song “Rescue.”

“I hear your SOS, your SOS,” the song played as her family wept. “I will rescue you.”

The Death of Andrea High Bear: A Timeline

Oct 7, 2019: Andrea High Bear pleads guilty to one count of maintaining a drug-involved premises; she is placed into the custody of the U.S. Marshals Service and booked into the Hughes County Jail in Pierre, South Dakota.

Jan. 14, 2020: High Bear, in her second trimester of pregnancy, is sentenced to 26 months in prison, followed by a three-year term of supervised release.

Early February: High Bear arrives at the Winner City Jail for holding.

March 11: The World Health Organization declares the coronavirus outbreak a global pandemic.

March 13: The BOP announces it is “restricting inmate movement” in hopes of containing the coronavirus outbreak; President Donald Trump declares a national emergency.

March 20: High Bear is airlifted to Federal Medical Center Carswell in Fort Worth, Texas, and placed into a 14-day quarantine She is screened and does not report any coronavirus symptoms at the time.

March 26: Attorney General William Barr writes a memo to the federal Bureau of Prisons instructing officials to opt for home confinement whenever possible for those incarcerated people who are at-risk.

March 27: Trump signs the CARES Act, Congress’ third coronavirus relief package; it is around this time that High Bear begins feeling sick and asks authorities for help, according to her grandmother.

March 28: High Bear is admitted to John Peter Smith Hospital in Fort Worth; the BOP would later say it was for “potential concerns regarding her pregnancy,” but the union president of the corrections staff at FMC Carswell would later write in a whistleblower’s memo that it was because High Bear was a suspected symptomatic coronavirus case.

March 31: High Bear is taken back to the hospital with a fever, a dry cough, and respiratory distress; the hospital calls High Bear’s grandmother Clara LeBeau to confirm she’ll take care of the baby when it’s born; High Bear is put on a ventilator.

April 1: High Bear’s baby girl, Elyciah Elizabeth Ann High Bear, is born a month early via C-section.

April 2: FMC Carswell begins “operating in a modified manner” in response to the coronavirus, according to the BOP in a VICE article.

April 3: Barr issues a memo saying that the CARES Act allows him to expand the use of home confinement, but over the course of the following weeks, the rules shift over who can be released.

April 4: High Bear tests positive for the coronavirus.

April 7: The president of the union representing FMC Carswell’s corrections staff sends a whistleblower letter to Sen. John Cornyn of Texas saying that the prison has “knowingly and willingly misled the public placing staff, inmates and community at risk to the most lethal pandemic since 1920.”

April 17-18: LeBeau drives from South Dakota to Texas to pick up her great-grandchild; she’s not permitted to see High Bear, who remains on a ventilator.

April 28: High Bear dies from the coronavirus.

April 29: The criminal justice reform organization FAMM calls for an investigation into High Bear’s death; U.S. Sen. Dick Durbin calls High Bear’s death “preventable” and calls for the Justice Department and BOP to act now “to prevent more death and suffering.”

May 7: High Bear’s family gathers for a small funeral service and she is buried in Eagle Butte, South Dakota.