Prisons Must Begin Releasing People to Stop COVID-19

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May 4, 2020

Prisons, jails, and detention centers are a deadly culture broth for highly contagious viruses like COVID-19, which can be spread easily by way of brief, indirect contact with another person through a sneeze or a cough. There is simply no opportunity to practice social distancing. Everyone shares the same common spaces, everyone breathes the same air, and there are frequent changes in prisoner and guard personnel. In addition, the virus remains contagious for up to three days on surfaces like plastic, cardboard, and steel — making the cramped conditions of these facilities a dangerous no-go zone for everyone confined where space is limited and shared, and contact with others is inevitable.

Indeed, the virus has already begun to sweep through these facilities at an alarming rate. In Ohio, the Marion Correctional Institution recently confirmed that a staggering 73% of the inmates have tested positive for the virus. The State of Arkansas reported that almost 40% of the state’s cases are in prisons. The numbers of people testing positive in immigration detention centers has also dramatically increased. For example, the number testing positive doubled recently in a Texas detention center.

The consequences of this proliferation are devastating and will worsen if facilities, state governments, and the Trump administration fail to act immediately. For those prisoners who contract the virus, one third have a higher risk of serious illness based on age and underlying medical conditions. And in the U.S., roughly one percent (likely an underestimate) of those who are infected will die. Scientists predict the virus could eventually infect millions and kill up to 100,000-240,000 people in the U.S.

The impact is already being experienced in the criminal justice system. As of writing, the Federal Bureau of Prison has recorded 38 federal prisoner deaths so far, and the deadly consequences of the pandemic are starting to significantly impact state facilities. For example a prisoner who was set for release recently succumbed to the virus in Michigan, and Alabama, California, Louisiana, New York, New Jersey, Virginia, and many other states have reported prisoner deaths from COVID-19. The growing number of cases in these and other states will inevitably lead to further serious illness and death unless individual states and the Federal Bureau of Prisons intervene.

Prisoners and detainees are especially vulnerable to the virus because at least half of them report a chronic health care condition such as asthma, kidney-related problems, and other conditions, making them susceptible and more likely to experience complications. This is especially the case for LGBTQ people in prisons, jails, and detention centers, many of whom are particularly vulnerable to COVID-19 as a result of an underlying condition. LGBT people experience worse health care outcomes than straight and cisgender people and are also more likely to suffer from asthma, gastro-intestinal problems, and other underlying conditions. Transgender people in particular are twice as likely to report limitations in daily activities due to health concerns.

Transgender people are also disproportionately impacted because they are disproportionately represented in prisons and jails. Nearly one in six transgender Americans has been to prison. Nearly half of Black transgender people report having been incarcerated at some point in their life. Transgender people, and especially transgender women of color, are often entangled within the criminal justice system as a result of police profiling, discrimination, homelessness, lack of family acceptance, unsafe schools, and other factors. Once incarcerated, many transgender people report being denied adequate, routine medical care — placing them even further at risk of serious illness and death as a result of the virus. 

So, what is to be done?

A prescriptive list of immediate action items follows, but the primary takeaway is that, in keeping with longstanding compassionate release and similar practices, urgent efforts must be made to release prisoners and detainees whose age or underlying medical conditions make them vulnerable to severe illness and death from COVID-19, and to help in their reentry to find safe and affordable housing as well as proper health care.

Such releases are already happening around the country (and around the world). Thousands of inmates have recently been released in New Jersey, New York City, Iowa, Washington State, and many other places. In addition to expediting the release of prisoners who are at especially high risk for the disease, facilities should release individuals who are awaiting trial to the greatest reasonable extent. There are roughly 2.3 million prisoners held in custodial facilities in the United States. Of the 631,000 who are locked up in local jails, over 60% are waiting for trial and could not afford bail or are serving short sentences for minor crimes such as probation violations.

Because prisons, jails, and detention centers are not prepared to manage the COVID-19 pandemic, prisons and jails should take the following steps immediately to prevent further spread of the virus that does not recognize prison walls, which will imperil all of our communities and cause still more needless casualties.

  • Higher risk prisoners, such as people over the age of 50, those with underlying conditions such as asthma, diabetes, cancer, and anyone that does not pose a safety risk to the community should be immediately released, as well as the large majority of individuals who do not pose a safety risk who are awaiting trial because they could not afford to pay bail money.
  • Juvenile facilities likewise should take all possible steps to protect the young people in their custody and care, and should release those for whom safe living arrangements can be found.
  • Prisons should be complying fully with the baseline recommendations the (CDC) has provided to control the spread of the virus and to treat infections. In particular, prisons should immediately provide soap and CDC-recommended hand sanitizer at no cost, comprehensive sanitation and cleaning of all facilities, and all of the other safety measures recommended by the CDC for those who remain incarcerated.
  • Prisons and jails should immediately make phone calls, video calls, and other forms of communications free of cost for people in custody to stay in touch with their loved ones.
  • People should not be held in isolated confinement as an alternative to adequate medical care. A recent lawsuit stated that prisoners who test positive for the virus “are confined in filthy isolation cells, where the walls are covered with feces, mucus, and blood. They are barely monitored and receive no real treatment.” This is unconscionable, and unconstitutional.
  • Quality healthcare should be provided to all persons in custody, including transferring to a hospital any person who is too ill for prison medical staff to treat effectively.
  • Prison employees should immediately be tested for COVID-19, and those who test positive or whose household members have tested positive should be placed on paid sick leave until it is determined that they pose no risk to others. Any prison employees who have not maintained a safe social distance from anyone who has tested positive likewise must be tested and placed on paid sick leave at least for the standard quarantine period. Any incarcerated people exposed to those who test positive should be given access to testing and quality medical care.
  • Many of these recommendations are also included in letters written by the Leadership Conference that Lambda Legal has joined. One letter was sent to the National Governors Association (NGA), U.S. Conference of Mayors (USCM), and the National Sheriff’s Association (NSA), and another letter was sent to the Federal Bureau of Prisons.

This is an extraordinary time, and extraordinary measures must be taken to protect the health and lives of those who are incarcerated, corrections staff, and all of their families.