The Growing Prison Pandemic Wasn’t Inevitable, and It’s Not Too Late to Fight It – brennancenter.org

The Covid-19 outbreaksnow surgingthrough many of the nations prisons and jails werent just predictable, they were predicted. And not just by theprisoners themselvesand theirfamily membersinincreasingly desperate tonesoverthe past monthbut also by some sheriffs andjailersandcorrections officialsand theirunion representatives. And not just by those behind bars but bylawyersanddoctorsandcriminal justice advocatesand professors,hundreds of them, in every nook and cranny of the country, all of whom understood how dangerous and deadly the pandemic would be once itfound its wayinto cramped, dirty, overcrowded cells.

These personalcries for help,these warnings, thesepersonal essays from prisons, these reasoned arguments to release vulnerable prisoners especially those whose sentences are about to expire and those in pretrial detention accused of nonviolent offenses sounded everywhere. And they were all a variation of the same theme: that prisons and jailswere obvious breeding grounds for the virus, that it could not be contained behind bars, that theinevitable outbreakswouldnt just take or endanger the lives of prisoners but would kill prison staff and their extended families; in other words, that preventing the pandemic in prison would save lives on the outside.

To theireternal credit, some officials have heard the call anddone the right thing. Thousands of men and women were released fromprisonsand jailsover the past monthand many more should be released soon. But in too many other places,politiciansand prosecutors waitedfor the virus to enter their facilitiesbeforeacting to save prisoners. And in some places eventhe spread of the virusand its obvious threat to everyone in or near a prisonhasnt been enoughto convincesome officialsthat there aremore important public safety interestsat stake than continuing to imprison at-risk people in the name of justice.

Like so much else about Americas criminal justice systems, a prisoners fate amid the pandemic is an arbitrary affair, largely determined by jurisdiction. If you were released from confinement in the past month its largely because you happened to have an enlightened jailer,or compassionate judge, or broad-minded prosecutor, or because you had particularlyferocious advocatesfighting for you. Or maybe the laws of your state happened to have a little more ambiguity. Or maybe you had a governor willing to say, on the record, that public safety in these circumstances includes the idea of fewer prisoners.

Even still, there are no guarantees. Officials at the Cook County Jail in Illinois, for example, reduced their population by 16 percent in the last month to try to help bend the curve but still are suffering from a terrible outbreak. As of this weekend, nearly300 prisoners and staff have tested positivethere,nearly 4 percent of the entire states numberof confirmed cases. How much worse would the outbreak have been there had that 16 percent remained behind bars? How many fewer cases of the virus will stem from the social distancing these lucky men and women now can practice?

There is a growing outbreak, too, at the jail in Washington, DC, wherefour more prisoners were confirmed positiveover the weekend. There,as attorney Greg Lipper pointed out, lawyers for the Districts attorney general opposed the release of prisoners by arguing, incredibly, that they had not met their burden of proof. Although complete social distancing and isolation is not possible in DOC facilities,the lawyers wrote, plaintiffs have not shown that the risk posed by DOCs practices raises plaintiffs risk of exposure substantially over the risk experienced by the outside community. Fewer sentences in the annals of American law deserve more opprobrium than that one.

The federal response was equallytardyand tragic. As my colleagues at The Marshall Projectreported last week, the chief public health official at the Bureau of Prisons ordered a staff member at FCI Oakdale, in Louisiana, to return to work behind bars even though he had been exposed to those who had tested positive for Covid-19. Not only did this advice contradict the guidance offered by the Centers for Disease Control, it also came at a time when Justice Department officials were downplaying the potential consequences of a prison outbreak, with federal prosecutors going so far as to write briefsopposingreasonable release requests.

Today? At leasteight federal prisoners have died from Covid-19and over 300 other prisoners and staff have tested positive, and there is no way to tell how far the coronavirus has spread into the families of the prison guards and others who work there. FCI Oakdale is not alone. There isalso a COVID-19outbreak at the low-security federal prison in Danbury, Connecticut. The Justice Department waited until these outbreaks occurred andthenswiftly ordered the release of prisoners there. We will never know how many lives are lost, behind bars and beyond them,because of these inexcusable delays. Wedont even know for surethat the Bureau of Prisons will zealously implement the new plan.

These corrections officials and sheriffs and judges and prosecutors and legislators didnt have to wait until it was too lateto protect prisoners.But they waited anyway. They waited to release prisoners who had not been convicted. They waited to release prisoners who were slated for release within 60 or 90 days. They argued that elderly prisoners, if released, would start a crime wave. They argued that carrying out duly imposed sentences were more important than saving lives. They argued they had it all under control evenwhen the rest of usknew they didnt. And if theydidrelease some prisonersit was a paltry few. Far too few.

Its negligence at best,deliberate indifference at worst. Robert Ferguson, the author and professor, years ago described the reasons why America has always beenso spectacularly harsh in its treatment of prisoners. Never hasthat theory been proven more clearlythan it has been in the past month. Except the cruelty shown the prisoners who have been kept locked up as the virus spreads doesnt just end with them. It attaches to the staff who guard them, and to their families, their lawyers, and to everyone who interacts with them. All of these non-prisoners, as well as those behind bars, may soon suffer from the virus, a form of retributive justice neither retributive nor just.

The views expressed are the authors own and not necessarily those of the Brennan Center.

Read this article:
The Growing Prison Pandemic Wasn't Inevitable, and It's Not Too Late to Fight It - brennancenter.org