Social Distancing Incarcerated People—An Oxymoron

On March 19, 2020, Governor Gavin Newson ordered forty million Californians to stay confined to their homes amid the coronavirus (COVID-19) pandemic. For the 130,000 incarcerated people in the state, the stay-at-home order is an enhanced health threat. The cramped and sordid living conditions of the 1.3 million people incarcerated in the United States have potentially transformed state and federal prisons and jails into penal petri dishes of disease and potential vectors for its spread on the inside and out to the streets. Medical professionals and infectious disease scientists have warned us that coronaviruses spread primarily through contact with an infected person when they cough or sneeze.

A March 27, 2020, report by The Marshall Project entitled “Photos Show Some Prison Beds Are Only Three Feet Apart” shows that despite the coronavirus pandemic, crowding in the California prison system is fueling a smoldering cauldron of infection in the state’s penal system. The report contains rare photos of living conditions in the California Medical Facility in Vacaville and the California Institute for Men (CIM) in Chino. More photos are part of an emergency motion filed in federal court on March 25, 2020, that contends that California has failed in its effort to protect incarcerated people from coronavirus.[1] The motion states that “this court should order targeted relief to address unacceptable risk of harm to medically vulnerable populations and people housed in overcrowded dorms where social distancing is impossible.” The motion also notes that “combatting crowded conditions in the dorms is impossible, as there is simply nowhere to move people to allow necessary social distancing.”

With the virus outbreak came a new public health phenomenon—social distancing. One measure of social distancing is staying six feet away from other people. Social distancing has rapidly evolved into a public health intervention designed to help stop coronavirus transmission. Groups of people can become vectors—hot spots—for infection. On March 2, 2020, the Centre for Mathematical Modelling of Infectious Diseases (CMMID) published its estimate that about 23 percent of transmissions of coronavirus could have originated from people who didn’t know they had the virus.

Six Feet of Separation

According to the Johns Hopkins Medicine guidelines, six feet of separation is a safe distance for lowering the chance of catching the airborne COVID-19 virus. That limitation conflicts with the innate need to associate in person and to do so as one chooses. Social distancing restrictions insult our conventional sense of freedom. To deliberately separate people against their wills, for the best interest of the common good, neatly defines incarceration—or does it?

The notion of social distancing in prisons, jails, and immigration holding cages is oxymoronic. Imprisonment desocializes people into a chronic health safety battleground. In a January 2019 post written during the federal government shutdown credited to the current administration, I identified how federal inmates were a separate impact class that suffered a double whammy from the shutdown:

Human quality of life is measured differently for the incarcerated. On the inside, loss of freedom is not a cliché. And while prisons are necessary to contain aberrance and to hopefully rehabilitate, in times of untoward external stress, prison rule makers expectedly cloister to ponder ways to tighten tactics and measures to keep prisons safer. Now is such a time of stress, brought about by cutbacks in prison staff and operations.

The striking difference between the 2019 government shutdown and the coronavirus crisis is that COVID-19 has seeped into all aspects of life—for both free and imprisoned people. The movement in 2019 was to tamp down, freeze, and lock down the prisons to contain and keep everyone in place. Now the focus is different because the threat of the pandemic is both inside and out of the prison walls.

During the August 2018 national prison strike that lasted seventeen days, I wrote about “the smoldering of our prison populations.” I went on to say that

A prison strike is a means for inmates to be heard; it is an expression of protest against prison conditions in a concerted voice intended to attract the attention of prison officials and the media—and it is often a catalyst for substantive change that crawls forward enmeshed in politics as throwaway issues. Just be tough on crime to keep your seat in government.

No reported changes resulted from the strike against allowing slave labor in prisons and for resolving overcrowding, healthcare, and other issues going back to August 1971 when a deadly riot overtook New York State’s Attica prison.

COVID-19: The Direness of Mass Incarceration Exposed

The struggle for change in California’s overcrowded prisons culminated in 2011 when the United States Supreme Court mandated a population limit for California prisons in its decision in Brown v. Plata. The Supreme Court’s ruling had an enormous impact on California’s corrections policies and procedures regarding the health and safety of the state’s prison populations. As I wrote in my post, “AB 109—Where Are You Now?” Justice Kennedy, writing for the majority in Plata,

included a list of factual findings of deficiencies in the [California prison] system. These deficiencies made the level of serious overcrowding in California’s thirty-three prisons the primary cause of a violation of the Eighth Amendment’s ban on cruel and unusual punishment.

Among other concerns, Justice Kennedy, writing for the majority and based on the record of expert reports, recorded the following findings:

• Inadequate medical screening of incoming prisoners
• Delays in or failure to provide access to medical care
• [Inappropriate] responses to medical emergencies
• Lack of quality control procedures, including lack of physician peer review, quality assurance, and death reviews

As a result, the Plata decision in effect ordered California to reduce the number of incarcerated people by thirty-three thousand (the prison population in California in 2010, the year before the Plata decision, was 165,062). The decision led to California’s historic realignment process that continues today. According to the Public Policy Institute of California, since 2017, the state’s prison population has hovered around 130,000, when the people in private prisons and fire camps are counted. Even with a decade of reducing the inmate populations, the Public Policy Institute findings concluded that “many prisoners still live in overcrowded [California] prisons.”

The Fox in the Henhouse

While the legal system could not achieve a rapid reduction in prison overcrowding, the COVID-19 virus is doing so in rapid-fire speed. Prison and jail administrators now see the immediate need to reduce their populations to curtail the threat to prison personnel and those determined to be unfit for early release. Some dangerous people do need to be incarcerated in safe surroundings.

As reported by the Los Angeles Times on March 20, 2020, the number of reported COVID-19 cases continues to go up in the Golden State.

The California Department of Corrections and Rehabilitation confirmed . . . that an employee at California State Prison in Sacramento and an employee at San Quentin State Prison have both tested positive for COVID-19.

No cases among inmates were confirmed, and there’s no information available about whether any inmates were tested.

On March 20, 2020, the LA Times reported that “1,800 prisoners were placed in quarantine at San Quentin State Prison after several [inmates] developed flu-like symptoms.” The corrections department has not released the test results of those, or any other, prison inmates.

There are two ways to change this reality: immediate reduction in prison populations and criminal justice changes that soften the social lock-her-up mindset in this country. This post focuses on the decrease of prison populations—how COVID-19 is a catalyst for the reduction of mass incarceration.

Mass Incarceration: The COVID-19 Effect

The Marshall Project reported on March 17, 2020, that on or about March 12, nearly all state prison systems suspended personal visitation, although some allow visitation by the legal counsel of record. On March 24, California chief justice Tani G. Cantil-Sakauye issued a statewide order suspending all jury trials for sixty days. All other states have attenuated their criminal and civil trial calendars to mitigate health risks to judges, court staff, and litigators. Such detours from the judicial norm are ominous signs of the fragility of traditional judicial institutions in deference to a disease.

Criminal Prosecutors’ Joint Statement

In an updated March 25, 2020, document titled “Joint Statement from Elected Prosecutors on COVID-19 and Addressing the Rights and Needs of Those in Custody,” thirty-five district attorneys and state attorneys general (including Cyrus R. Vance, New York County district attorney) recognized that because of COVID-19, the world is on high alert and that the virus “is spreading quickly among high concentrations of people in close proximity,” such as in schools, conferences, malls, theaters, conveyances, and “behind bars in America’s jails, prisons, and immigration detention centers.” The prosecutors advanced the notion of the importance of achieving reductions in detained and incarcerated populations.

First and foremost, we urge local officials to stop admitting people to jail absent a serious risk to the physical safety of the community. Policymakers, prosecutors and criminal justice leaders should also take steps to dramatically reduce detention and the incarcerated population. To that end, we believe that elected prosecutors should work with public health officials and other leaders in their communities to implement and advocate for the following reforms—[the prosecutors’ recommendations for achieving their goals are specific, and include]

• [The adoption of] cite and release policies for offenses which pose no immediate physical threat to the community, including simple possession of controlled substances.
• [The] release [of] all individuals who are being detained solely because they can’t afford cash bail, unless they pose a serious risk to public safety.
• [The reduction of] the prison population to minimize sharing of cells and ensure that there are sufficient medical quarantine beds, and enough staff, to promote the health and safety of staff, those incarcerated, and visitors.

On March 16, 2020, CNN reported that cities are taking their own initiative to lower the number of people held in their jails. Three days earlier, two hundred inmates were released by judges in Cleveland who began holding expedited hearings to reduce the county’s jail inmate population due to concerns about a coronavirus outbreak there. This action was taken without any inmate or staff members at the jail having tested positive for the virus.

On March 23, 2020, New York City mayor Bill de Blasio announced that two hundred inmates in jail or prison facilities within the city’s jurisdiction had recently been released and that 175 more were going to be released that day. “The mayor said that inmates in the city who are ‘in immediate danger’ of contracting COVID-19 should be immediately released, and [that he] had plans to potentially release more than 1,000 of those incarcerated at Rikers Island.” The mayor added that “NYC’s incarceration population was below 5,000 for the first time since 1949.”

On March 24, 2020, CBS News reported that “approximately 1,700 inmates have been released from Los Angeles County jails in response to the coronavirus outbreak.” The releases amounted to a reduction of the county’s inmate population by 10 percent. Sheriff Alex Villanueva is quoted as saying that “no one in the county’s jail system ha[d] tested positive for COVID-19.”

The early release of incarcerated people is a rapidly evolving response to a mysterious disease. The number of people being released—some with conditions, others without—rises every day even though there is no national policy for early releases secondary to inmates’ health, age, or other equitable reasons. What do these people face in terms of moving on with life in a world that’s starting to look foreign from the streets?

Conclusion

This country is in the middle of a national health threat. Experiencing known and unknown risks in real time is stressful and results in rapid changes to social policy. Since the 2011 Brown v. Plata decision eliminating cruel and unusual punishment in the California prison system, the coronavirus pandemic reveals that the reversal of mass incarceration can happen quickly. Maintaining a six-foot zone of safety is inherently impossible in overcrowded prisons. Prison reform because of an existential threat to the world is too high a bar for making humane changes.

What’s not clear is the success of the returnees once they’re back on the streets. They’re going to face a diving economy, soaring unemployment, and the usual stigmas. That story is unfolding.

Additional Resources

National Center for State Courts – Links to state court responses related to COVID-19

#LetThemGo advocates to reduce prison populations because of the COVID-19 threat

Please post your comments below.

Image courtesy of 123rf.com.

[1] Scroll through the motion to see the photos in these consolidated cases: Coleman and Plata vs. Gavin Newsom, Case Numbers 2:90-CV-00520-KJM-DB and C01-1351 JST.