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Mass Incarceration Poses a Uniquely American Risk in Pandemic


Source: The Intercept

Protester standing in front of governors mansion calling for Governor Walz to free all prisoners during Covid-19 pandemic. Saint Paul, St Paul, MN, USA Photo by Steve Skjold/Shutterstock.com

 

There is a fundamental flaw in the models that Trump administration officials have used to project the curve of the coronavirus outbreak as it rips across the United States. Those models were based on other countries’ experiences with the virus — from China to Italy — and do not account for a uniquely American risk factor: mass incarceration.

There are currently 2.3 million people incarcerated in U.S. jails and prisons. The U.S. accounts for 4 percent of the world’s population and 21 percent of its prisoners. While incarcerated people have been released in trickles across the country as the U.S. has become the global epicenter of the pandemic, those releases are hardly making a dent in the density of prisons and jails, and they pale in comparison to the tens of thousands of people freed by other countries with far lower incarceration rates. So far, at least 295 men and women in the U.S. have died after contracting the virus behind bars — a figure that is climbing by the day and remains “dramatically underreported,” according to experts who have been tracking it. The official number of positive cases reveals little beyond how few incarcerated people are being tested: In the handful of facilities with higher test rates, most people were found to be positive. Eight of the 10 largest outbreaks in the country are in prisons and jails.

But mass incarceration is not only causing people to die of Covid-19 behind bars. As corrections facilities become hot spots, the virus is also rapidly spreading into the surrounding communities. A new model released in April by the American Civil Liberties Union suggests that when jails are accounted for, estimates of the death toll are off by at least 100,000. And that’s for jails alone — not prisons or immigration detention facilities.

It’s not hard to imagine why prisons and jails have quickly become the epicenter of the epicenter.

“There’s no such thing as social distancing in prison,” a man incarcerated in a New York state maximum security facility wrote to me. “How can an incarcerated individual maintain social distancing in a population of over 2,000?” he added. “With 240 men to a block, minus the guards? With every man dwelling on all sides of one another, constantly?”

“This is a time bomb,” another incarcerated man wrote. “The mess halls and lines traveling to and from, among other places, are areas of mass density. They have cut down the amount of people per table, but we’re still less than 2 feet part.”

“I am sure you can imagine that the jailhouse is in the worst state it has been in anyone’s memory,” added the man, who has spent the last 25 years in prison. “In this particular warehouse, it seems like every day we hear of someone in the cell sick, taken to a section of cells for the sick, placed in the medical department’s isolation, or taken to an outside hospital.” The prison had finally started to provide inmates with face coverings, though not real masks, and hand sanitizer, he noted. Hand sanitizer is usually banned in prisons as contraband, a lawyer said on a recent call, “because it has alcohol in it, and I guess they think that people are going to drink it.” The fact that some prisons are starting to relax the rule is a sign of how dire the situation is getting, and how little officials are actually doing to stop the virus.

The psychological toll, too, is even more staggering behind bars. “I haven’t been this stressed out since I was on trial,” a third man wrote to me, before listing all the loved ones who were falling ill as he sat in prison unable to be with them. “It’s the fear of calling home and finding out someone else I held close to the heart passed away. It’s the fear of never being able to see someone I love ever again and not being able to pay my proper respects.”

Everything Is an Undercount

For the past two months, Sharon Dolovich and a team of volunteers have been tracking the tsunami sweeping through the country’s prisons and jails. Early on in the U.S. outbreak, when prisons’ first response to the threat was to shut down visits, Dolovich, a professor at the University of California, Los Angeles School of Law, started a spreadsheet to keep track of each facility’s Covid-19 policies. Prisoners’ rights lawyers were scrambling to help their clients. Dolovich made the document public “so people don’t reinvent the wheel,” she told me. “People were writing demand letters and starting to do court filings to go to court and try to get people released. Not everybody had to do it for themselves — I could share.”

As the virus spread, the spreadsheet quickly grew into a more ambitious project — and the most complete picture we have of how the crisis is impacting jails and prisons across the country. Dolovich started hearing from former students, advocacy groups, and strangers offering to monitor releases, juvenile detention centers, and requests filed with each facility, among other information. When state corrections departments began to post regular updates about positive cases and deaths, many in response to mounting public pressure, a group of volunteers started recording the data daily to track the growth of cases over time. They also scoured news reports and tapped into other resources to provide data that was sometimes more up to date than the official tallies.

“Everything we are seeing is undercounted,” Dolovich emphasized. “It’s in the interest of the prison systems to pretend these people are not dying from Covid.”

“It’s in the interest of the prison systems to pretend these people are not dying from Covid.”

Born as a crisis response tool, the project also aims to document the pandemic in the country’s prisons and jails before officials have an opportunity to rewrite its history. “One of the things that we’re predicting is that after the initial emergency has passed, the number of people who died during this period and the number of people who are reported to have died from Covid are going to be very different,” Dolovich said. “I think jails and prisons are going to pretend that people died from other things.”

As incomplete as the data might be, UCLA’s Covid-19 Behind Bars project is breathtaking for the scale of the catastrophe it captures. It is also an indictment of a criminal justice system that both enables so much death and fails to account for it. In addition to 295 deaths, the UCLA project has documented at least 21,007 coronavirus cases among incarcerated people, as well as at least 8,754 cases, and 34 deaths, among corrections staff. No government agency has compiled or made public this collective data.

According to U.S. Immigration and Customs Enforcement, 674 detainees have tested positive, out of 1,346 people tested. So far, at least one detainee has died of the virus, at the Florence staging facility, a transfer center in Arizona. At least four ICE staff at the Hudson County Jail in New Jersey have died. And cases were reported, among both staff and detainees, at more than 40 other facilities. Cases were also confirmed at more than two dozen correctional facilities for youth, according to the UCLA data.

Part of the reason there’s no official comprehensive dataset tracking the impact of the coronavirus in the U.S. prison system is because there is no unified system, but rather a tangle of federal, state, and local jurisdictions. “It’s always been a decentralized fight, state by state, county by county,” said Dolovich.

That presents both a massive challenge and an opportunity, added Dolovich. Because there is no centralized body overseeing Covid-19 responses in prisons and jails, advocates have been lobbying hundreds of officials across the country, while armies of lawyers have been working around the clock on behalf of individual clients and entire classes of people. They have filed motions with dozens of courts arguing for relief that can range from diversion to lower sentences to compassionate release. “The level of advocacy effort and involvement is actually astonishing and inspiring right now,” Dolovich said. “There’s no easy levers. So people are basically slamming their heads against the wall and trying to see if there’s any kind of weakness they can take advantage of to help their clients.”

“We’ve had 40 years of a legal system that’s been crafted with the effect of making it extremely hard to provide any kind of meaningful constitutional relief for people,” she added. “We respond to any kind of social crisis with incarceration, and what we’re seeing now is the fruits of those efforts.”

Each Its Own Universe

The fragmentation of the U.S. criminal justice system — a sprawling, decentralized bureaucracy with thousands of jurisdictions and powerholders — has long served to hide the full cost of mass incarceration. Comprehensive data on those the U.S. deprives of their freedom is virtually impossible to obtain in a timely fashion, if at all. The coronavirus crisis has laid bare this systemic failure more than ever. The country’s more than 3,000 jails, in particular, function like fiefdoms. While state corrections departments oversee prisons, and the Bureau of Prisons runs federal facilities, jails operate under the authority of thousands of local officials. Only a handful of states collect data from their jails.

“We literally have thousands of criminal justice systems.”

“There isn’t centralized reporting, responsibility, or accountability,” said Insha Rahman, director of strategy and new initiatives at the Vera Institute of Justice, which has long sought to fill in the gaps in official data and recently launched a new tracker monitoring Covid-19 responses across the jail system. “It’s actually literally going county by county to get that information.”

“It’s so hard to know what’s happening across the entire country,” echoed Udi Ofer, the director of the ACLU’s Justice Division. “We don’t have one criminal justice system in the United States, we literally have thousands of criminal justice systems. … It’s so decentralized that every jail, every prison is its own universe.”

The ACLU model attempted to account for the “uniqueness of every jail and community,” said Lucia Tian, the organization’s chief analytics officer, adding that their model was the combination of “over 1,200 individual models with tailored information from those particular jail systems and counties.” The model predicted that, with highly effective social distancing in place, accounting for jails would increase U.S. Covid-19 deaths by 98 percent — from a projected 101,000 to 200,000. With less effective social distancing, jails could bump up the death toll by 188,000, for a predicted total of 1,177,000.

The UCLA project tracks jails too — though only a few jail systems are making coronavirus data readily available to the public, mostly in larger cities where scrutiny is highest. Those jails have been devastated by the virus. At Rikers Island, in New York City, where three inmates and nine corrections staff have died, the reported infection rate is almost 10 percent. At Cook County jail in Chicago, where six inmates and two staff have died, almost 900 inmates and staff have tested positive.

In prison, age is a significant risk factor for tens of thousands of people: There are nearly 200,000 incarcerated people over the age of 55, a number that has spiked by nearly 300 percent over the last 20 years. That’s indicative not just of how many people the U.S. incarcerates, but also for how long. About 40 percent of people in prison have at least one chronic health condition such as asthma or diabetes, which makes those individuals particularly susceptible to serious illness with Covid-19.

“We know rural America is at least a couple of weeks behind the curve.”

But if people in prison tend to be older and sicker, people in jail move in and out at much higher rates, making those incarcerated in jails especially vulnerable to catching the virus and more likely to spread it. There were 10.7 million jail admissions in 2018 alone — and each admission puts police officers, guards, and other staff, in addition to the incarcerated, at risk of exposure. “Social distancing is even worse in jails, because jails are meant to be temporary holding facilities,” Ofer said. “People tend to live in dormitory-style rooms with bunk beds 2 feet apart, if that. There’s absolutely no social distancing in jail, it’s kind of a one-two punch.”

The situation at Rikers and Cook County offers a bleak foreshadowing of mass deaths to come across the jail system, particularly in rural areas where health care access is already a chronic issue and jails often fill in for a lack of services. A report released in April by Data for Progress warned that rural communities are particularly vulnerable in a pandemic. In those communities, jails are often filled with people who have substance abuse problems or are too poor to post bail. Worse, the report warns, rural jails “are frequently located in counties that lack hospital capacity to handle the coronavirus pandemic.” In Mississippi, Montana, North Dakota, and West Virginia, for instance, more than one-third of people held in jails are in counties with no ICU beds.

“We know rural America is at least a couple of weeks behind the curve,” said Rahman. “But when it comes, it’s going to be devastating. … It will be worse than Rikers.”

Death by Incarceration

The solution, health experts and prisoners’ rights advocates have been saying all along, is simple: Prisons and jails should release far more people as quickly as possible. “Mass incarceration was a public health crisis before Covid-19, but the pandemic pushed it past the breaking point,” said Ofer. “We need governors and prosecutors and judges, and we need the president of the United States, to act immediately and dramatically to reduce jail and prison populations to stop the spread of Covid-19, not only in jails and prisons, but in the broader community.”

But as calls for people to be released have echoed across the country, and some states, like Vermont, have taken decisive action, many law enforcement officials have resisted what they called the “mass release” of incarcerated people. In general, jails have reduced their population at a much higher rate, about 25 percent, according to a new analysis by the Prison Policy Initiative. But prisons, the same analysis found, “have released almost no one.” Some officials have suggested that those incarcerated for “violent” crimes are unworthy of release — a distinction that has long crippled efforts at substantial criminal justice reform, even before the current crisis. “If we don’t tackle the question of people serving time on violent convictions, we can’t meaningfully stop the spread of Covid-19,” said Rahman. “That’s just not going to make a meaningful dent.”

Still, U.S. officials are hanging on to mass incarceration even as its devastating impact becomes ever clearer. In Louisiana, rather than releasing people, officials have started to isolate the sick in a section of the Louisiana State Penitentiary, commonly known as Angola, that had been shut down following a long history of human rights abuses. In New Jersey, officials promised that hundreds of people would be released — but weeks later only a handful had been freed, and 37 people have died in prisons across the state. And in New York, Gov. Andrew Cuomo exploited the coronavirus pandemic to roll back weeks-old bail reforms that helped drastically reduce the jail population.

“It’s the Willie Horton factor, which is what kills reform and decarceration in the United States all the time,” said Ofer, citing the recent backlash against New York’s bail reform. “You could have a 97 percent success rate, where people are going home, being with their families. All you need is one case — which is inevitable — of someone committing a crime again and the backlash begins. And unfortunately, that’s what motivates many politicians.”

Cuomo, who has been hailed as a rare leader for his coronavirus response — mostly outside New York — has repeatedly resisted addressing the question of mass incarceration in his daily Covid-19 briefings. “He has actually done less than other governors, including Republican governors or governors in Republican states, in terms of releasing people,” said Rahman.

“Fifty-five people died in a nursing home in Cobble Hill, Brooklyn,” she added, noting that nursing homes have rightfully been a priority for the governor. “There is no reason to believe that won’t happen in one of our prisons or one of our jails.”

A report released last week by Human Rights Watch is just the latest to call on officials across the board to use their full powers to “avert an imminent catastrophe.”

“Without urgent action, Covid-19 in jail and prison populations will cause substantial suffering and death. Authorities need to take immediate action to protect incarcerated individuals and to limit transmission,” the report reads. “Failure to do so will undermine measures already in place outside of jails, including orders to shut down businesses and to ‘shelter in place,’ by adding to further spread. Failure to do so will contribute to overwhelming the capacity to meet medical needs. Failure to do so will result in avoidable deaths.”

For at least 295 people — and probably far more — it’s already too late.

Together, the ACLU and the UCLA Prison Law and Policy Program have compiled data on all known Covid-19 fatalities in prisons and jails into a spreadsheet, “Death by Incarceration,” which lists the names of the dead wherever they are known. Along with information about the facility are the person’s age, race, date of death, and notes about any requests for early release they might have made before dying. The spreadsheet also includes a column for “words of remembrance.”

“It felt really weird to just write names without memorializing it, so we left the box for anyone who may have known the person who has died and just wanted to share a few thoughts,” Ofer said. A few days ago, someone found the database, which is public but not widely advertised, and filled in the box next to Susan Farrell’s name. Farrell, a 74-year-old who died at the Women’s Huron Valley Correctional Facility in Ohio on April 8, had served 30 years in prison, always maintaining her innocence in the killing of her abusive husband. She had last attempted to have her sentence commuted in 2018, but her request was denied.

“I loved her laugh,” wrote the anonymous commenter, who said the two had been best friends at the prison and used to play Scrabble together almost every day. “Guilty or not, Susan is not the sum of her crime and could have served the community so much better had she been allowed to eventually leave the prison.”

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