A report in last Wednesday’s New York Times offered a stark reminder of the ongoing coronavirus crisis in America’s jails and prisons. The Times noted that the virus has “wreaked havoc on New York City’s 9,680 correction officers and their supervisors…. So far, 1,259 have caught the virus and six have died.”
And, what is true for jailers and guards is also true for inmates and prisoners. While COVID-19 testing is not widely available in federal and state prison or in jails, when tests have been done rates of infection have been astronomical.
The Associated Press notes that of the 2,700 tests done in the federal system through the end of April, 70% came back positive. In one Ohio correctional facility with 2,500 inmates, 2,000 have tested positive for the virus. In New York City, where the infection rate is generally 22.79 per 1,000 people, among people held in the city’s correctional facilities, the rate is 92.68 per 1,000 people. And in Chicago’s Cook County Jail, more than 230 inmates and 115 staff members have tested positive, even as the majority of inmates have not been tested at all.
The Marshall Project reports that across the nation “By May 13, at least 25,239 people in prison had tested positive for the illness, a 25 percent increase from the week before.”
The reasons for this crisis are not hard to find.
In the first instance, many of America’s correctional facilities are antiquated and notoriously overcrowded. In California, for example, 109,000 prisoners are housed in facilities with a maximum capacity of 85,000. In New York City, detainees sleep 40 people to a room, making social distancing an implausible form of protection.
Sanitation in jails and prisons is generally poor. In many facilities, the plumbing regularly fails, ventilation is inadequate, and food preparation fails to meet minimum standards of safety.
The situation is further compounded by the sorry state of health care behind bars. In 1976, the Supreme Court first recognized the government’s duty to provide medical care when it imprisons someone. It found that the failure to do so violates the Eighth Amendment’s ban on cruel and unusual punishment.
At the time, Justice Thurgood Marshall explained that “An inmate must rely on prison authorities to treat his medical needs; if the authorities fail to do so, those needs will not be met. In the worst cases, such a failure may actually produce physical ‘torture or a lingering death,’ the evils of most immediate concern to the drafters of the Amendment. In less serious cases, denial of medical care may result in pain and suffering which no one suggests would serve any penological purpose.”
Some 35 years later, in Brown v. Plata, when the Court again took up this issue, it found that little had changed. It held that the health care system in California’s prisons was woefully inadequate and unconstitutional under the Eighth Amendment. Too few medical personnel were being asked to serve too many inmates, resulting in long wait times even for critical medical care. The result was that “extreme departures from the standard of care were ‘widespread.’”
Despite the Court’s rulings, conditions remain catastrophically poor. States regularly fail to provide inmates adequate medical care. In Idaho, prison officials even tried to hide such deficiencies by destroying, altering, and falsifying prisoner medical records.
Many prisons have only the most rudimentary health care arrangements, if they have any at all. In fact, only seven state prison systems have hospital facilities on the premises. Even when they do, prison staff are not trained to deal with, or prevent, the spread of infection.
When inmates get seriously ill, they need to be transported to a nearby emergency room or hospital. Doing so requires that guards, in already understaffed facilities, be diverted to manage a single prisoner. This means that symptoms often are ignored until they reach a critical level.
As a result, prisons cannot now provide the kind of care needed to deal with COVID-19. The situation demands urgent action
States have responded to this urgency by granting early release to some inmates and home confinement to others. Across the country more than 16,000 state prisoners have been released because of COVID-19. The federal government, much like the failure of political leadership generally during this pandemic, is not keeping up with the states. Putting aside the well-publicized home confinement of Paul Manafort and Michael Cohen, the Federal Bureau of Prisons has released few prisoners.
Early release is the right thing to do, even though being suddenly freed has been hard for prisoners let loose into a country in lockdown and experiencing massive economic dislocation.
But it does little for those left behind to complete their sentences in unsanitary, overcrowded conditions. Action is needed to protect those still imprisoned, and cannot wait for litigation or the usual, slow process of bureaucratic change in the prison system.
Instead, state governors, and the Attorney General of the United States, need to appoint special masters and charge them with devising and implementing a COVID-19 plan for each prison or jail in their jurisdiction. They should ask legislatures for an emergency infusion of resources to change the way prisoners are housed so that social distancing and improved sanitation are possible, and to improve medical facilities within the prisons.
Americans have long held complex and ambivalent attitudes toward prisoners. Some see inmates, as one 19th century judge put it, as “slaves of the state” who have “not only forfeited (their) liberty, but all (their) personal rights.”
But, writing for the majority in the Plata case, Justice Anthony Kennedy put forth a different and far more compelling view. As he put it, “[a] prison that deprives prisoners of basic sustenance, including adequate medical care, is incompatible with the concept of human dignity and has no place in a civilized society.”
The time has come for Americans to respond to the prison and jail COVID-19 crisis in keeping with the view that all people, in and out of prisons, deserve to be treated with dignity and deserve the chance of surviving this pandemic.