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Prisons and the COVID-19 Pandemic: What Must Be Done NOW to Prevent Catastrophe

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Prisons and the COVID-19 Pandemic: What Must Be Done NOW to Prevent Catastrophe

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By Jerri-Lynn Scofield, who has worked as a securities lawyer and a derivatives trader. She is currently writing a book about textile artisans.

Back in January, before most mere mortals had heard about COVID-19, I attended the wedding in Hong Kong of Dr. Sarah Borwein, an old Oxford friend and travel companion.

That led to this post, A Tale of Two Cities: How Hong Kong Has Controlled its Coronavirus Outbreak, While New York City Scrambles. Sarah’s a Canadian-trained doctor who has practiced medicine in Hong Kong for more than 15 years. She has an extensive professional history of dealing with infectious diseases in Asia. Prior to commencing her practice in Hong Kong, she successfully ran the Infection Control program for the only expatriate hospital in Beijing during the SARS period, also serving as liaison with the World Health Organization.

Also attending the wedding was Michele Deitch, another friend from Oxford, whom I hadn’t seen since Margaret Thatcher was prime minister. We spent a pleasant weekend celebrating Sarah and Finn’s nuptials and filling each other in on what had happened in our lives during the past decades in a Hong Kong empty of tourists, scared away by their fear of ongoing political protests.

Michele was interested in prisoners when I first met her, and studied prison conditions as part of her research for an M. Sc. in Psychology  at Oxford University. I remember well some of her stories about her encounters with prisoners – a world far removed from the day-to-day experience of many of her fellow students. Her empathy was obvious, and it’s a quality she’s retained, as you can see in the following interview, at a time when empathy is in rather short supply – particularly for prisoners.

She is also a graduate of  Harvard Law School and of Amherst College.

Today, Michele is an attorney and teaches criminal justice policy at the University of Texas at Austin, where she holds a joint appointment as a Senior Lecturer at the Lyndon B. Johnson School of Public Affairs and at the School of Law. Her areas of specialty include independent oversight of correctional institutions and prison and jail conditions. She works closely with policymakers, jail officials, and advocates on a wide range of reform efforts. Prior to entering academia, Michele served as a federal court-appointed monitor of conditions in the Texas prison system, the policy director of Texas’s sentencing commission, General Counsel to the Texas Senate Criminal Justice Committee, and an independent consultant to justice system agencies around the country. (See more here.)

Earlier this week, I noticed a Facebook post of Michele’s on the ongoing COVID-19 crisis for prisons, and reached out to her to share her thoughts with you, dear readers. Over the last couple of days, we’ve been discussing the situation, on telephone calls and emails back and forth.

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JERRI-LYNN SCOFIELD: Could you summarize some of the prison conditions that facilitate COVID-19 spread?

MICHELE DEITCH: Prisons and jails are so densely populated, and it is impossible for people in custody to keep a social distance from each other. There are usually two or more people in a small, shared cell and oftentimes there are large dormitories. There are shared open toilets and sinks, often part of a single fixture, and often located adjacent to the bunkbeds. The chow hall has shared tables and long lines, with food doled out cafeteria-style by incarcerated workers.  Lines are everywhere inside a facility: the pill line; the commissary line; the line for showers. Work assignments involve close contact with fellow workers. There are lots of group activities: school, vocational training, programs, recreation. In short, unless you are in solitary confinement (which is incredibly harsh and definitely something to be avoided), you are in constant close proximity to lots of other people.

JERRI-LYNN SCOFIELD: More than 2 million prisoners are incarcerated in the US. Yet prisoners are not the only potential victims of prison spread. COVID-19 will also hurt prison staff, who will further spread infections back into their wider communities. What can you tell us about these risks?

MICHELE DEITCH: Prisons and jails are already facing lots of staffing challenges, with many facilities severely understaffed and with high turnover rates. Staff are usually poorly paid, and many have difficult working conditions.

Of course, COVID-19 doesn’t discriminate between staff and prisoners, and once the virus is in the facility, it will affect everyone regardless of their position.

With this new challenge, we need to make sure that staff are protected as well as people in custody.  And we certainly need to make sure that they are not coming to work if they are sick, because the consequences could be disastrous.

JERRI-LYNN SCOFIELD: I understand that reducing the prison population is one policy that can mitigate potential COVID-19 consequences, both keeping people from entering the system, and accelerating release of existing prisoners. Please tell me a bit more about this.

MICHELE DEITCH: Prisons and jails are at especially high risk for the spread of COVID-19, because they are so densely populated and there is little ability to implement social distancing strategies. When (not if) the virus hits these facilities, it will spread like wildfire, with disastrous consequences.Thus it is urgent for all places of detention to immediately reduce the number of people who are incarcerated, both to make social distancing a bit easier and also so that incarceration doesn’t mean a death sentence for people in custody who have little ability to protect themselves in these circumstances.

There are two ways to reduce the population. Think of these institutions as bathtubs. First, we have to turn off the spigot, to reduce the number of people entering the facilities; and second, we have to open the drain, to accelerate releases of people who are already incarcerated.

JERRI-LYNN SCOFIELD: What is being done across the country to reduce the number of people entering the prison system? I know some jurisdictions are increasing pre-trial release, particularly for non-violent offenses and other low-risk prisoners, and Fox reports that Philadelphia is now delaying arrests, Philadelphia police to delay arrests for certain non-violent crimes.

MICHELE DEITCH: Experts and advocates around the country are correctly urging law enforcement officials to limit the number of arrests, and wherever possible, issue citations in lieu of arrest. No one who is medically vulnerable or pregnant should be brought to the jail. People charged with non-violent felonies and misdemeanors should not be brought to the jail’s booking area unless they present a serious risk to public safety. Each person who comes into the jail is a potential vector for transmission of the virus. Beyond that, warrants for minor offenses should be suspended. Probation and parole should not be revoked for technical violations of conditions. And anyone charged with misdemeanors or low-level felonies, and those presenting little risk to the community, should be released on personal bonds. All people sitting in the jail because they can’t raise money for bond should have their cases reviewed immediately.

A number of jurisdictions, from San Francisco to San Antonio, have recognized that these steps are critically important as public health measures and have started to implement them.

JERRI-LYNN SCOFIELD: What about on the back end – parole and compassionate release? This would seem to me to be important, especially since much of the older prison population has co-morbidities, and are not at great risk for recidivism. 

MICHELE DEITCH: Prisons are full of medically vulnerable and elderly people and they are at incredibly high risk of falling prey to this virus. Plus, they represent a huge demand on correctional medical services. Parole boards need to immediately implement compassionate release programs that allow for the release of as many of these individuals as possible in order to reduce their risk of dying and to free up medical care for dealing the COVID-19 situation. And that can be done at little risk to public safety, since they are so unlikely to recidivate.

At the same time, parole boards should be speeding up parole consideration for people eligible for parole release.  Maybe that means holding additional hearings, not delaying someone’s release until they complete one additional program if they are otherwise eligible for release, or adding some extra good time in appropriate cases to make someone eligible for release a month or two ahead of schedule.  None of that will affect public safety but it may give someone a chance of surviving this virus.

JERRI-LYNN SCOFIELD: The United States is known for its massive, brutal prison system.  Other countries have made mistakes with their COVID-19 prison policies, and these have caused unnecessary deaths. What should US officials learn from these mistakes?

MICHELE DEITCH: Italy abruptly restricted visitation, apparently not replacing it with any alternative means of communication, and that led to riots with a number of deaths and escapes.  There are lots of lessons here, including that all restrictive measures, however appropriate, should be accompanied by mitigation strategies to reduce the harm caused to people in custody.  Corrections officials need to be cognizant of their obligations to prevent violence and tension in the facilities, at the same time as they seek to address the public health challenge.

JERRI-LYNN SCOFIELD: Beyond reducing the prison population  at both front and back ends, what is being done to limit COVID-19 spread?

MICHELE DEITCH: Depends on the facility. Most facilities are woefully underprepared, and many others seem oblivious to the seriousness of the risks they are facing. Some administrators, though, are showing leadership in their efforts to reduce the population and minimize the risk of spread. Most facilities, at this point, have restricted visitation.

JERRI-LYNN SCOFIELD: What should be done? Could you please outline key steps that can be taken, right now, to reduce prisoner and worker exposure to COVID-19, and limit its spread, reduce its severity, and minimize fatalities?

MICHELE DEITCH: There’s a very long list of steps that could be taken. Among the most critical are: reducing the number of people incarcerated, as discussed above; reducing the potential for transmission from the community to inside the facility, by limiting the number of people coming in from the outside and by carefully screening anyone coming into the facility; providing people in custody with free and readily available soap, hand sanitizer, and cleaning supplies for their living areas, and not treating this as contraband; providing people in custody with thorough and constantly updated information about the seriousness of this virus and how they can protect themselves; reducing congregate activities; eliminating medical co-pays, so someone who is sick has no disincentive to be treated; providing free testing to both staff and people in custody; and having a plan to treat and house separately anyone with symptoms of COVID-19.

JERRI-LYNN SCOFIELD: The Marshall Project reports in As COVID-19 Measures Grow, Prison Oversight Falls that prison oversight is plummeting, with entry of monitors limited, ostensibly to limit COVID-19 spread. Also, I note that visits by outsiders are also being limited, for similar reasons. What should be done to counteract these trend, and make sure that prisoners are protected?

MICHELE DEITCH: Prisons and jails are the most closed institutions in our society, and even before this crisis, we had little knowledge of what is happening behind the walls. In a handful of states, there are independent oversight bodies providing routine monitoring of conditions of confinement, and helping make those conditions transparent through their public reporting of their findings and recommendations. Some of these oversight bodies also provide investigation of complaints by prisoners or their loved ones.  There are also some state government entities that regulate county jails by monitoring their compliance with minimum standards. But now, few monitors are able to go onsite to the facilities, meaning that oversight is severely limited The risks of abuse, neglect, poor conditions, and failure to comply with standards are obviously increased, without that external scrutiny. That’s why it is so critical for oversight bodies to be collecting and reporting data about key indicators of safety and health inside the facilities.  Corrections officials should also establish a hotline so people in custody can call these independent entities. And corrections officials can conduct daily briefings for the press and for other public officials about what is happening inside, especially with regard to spread of the virus and how these challenges are being handled.

JERRI-LYNN SCOFIELD:  Could you elaborate on what policies prisons need to enact to mitigate harms caused by measures intended to limit COVID-19 spread? What do prison officials need to do to reduce inevitable tensions? Counteract enforced idleness?  

MICHELE DEITCH: It is critical that corrections officials be thinking not only about restrictions, but about ways to mitigate the harms caused by those restrictions. For example, to counter the harms caused by restricting visitation, officials need to increase access to free phone calls and video visitation. If educational programs get cut back, then look for ways to deliver content through tablets. Avoid locking down individual cells, and try to allow continued activity within a cellblock, once it is determined that no one there is sick. And recognize that enforced idleness and prolonged cell confinement can lead to tension and violence, both of which need to be prevented through mitigation strategies. Corrections officers really need to work on their de-escalation skills at this time to reduce those tensions and to avoid the need for hands-on contact and use of force.

JERRI-LYNN SCOFIELD: New York State governor Andrew Cuomo has set prisoners to making hand sanitizer. Is this sensible? Will the sanitizer be sanitary? And isn’t there a certain irony in that in many prisons, hand sanitizer is contraband (according to this recent Marshall Project article, When Purell is Contraband, How Do You Contain Coronavirus?).

MICHELE DEITCH: There are definitely multiple ironies around the fact that people in custody are making hand sanitizer. First of all, it shows how dependent we’ve become on the prison industrial complex to meet the commercial needs of our society, and reveals that the public’s health may depend in part on what happens inside prisons. Second, prisoners are allowed to make hand sanitizer, but they can’t use it – it is actually contraband behind the walls. So they can help keep everyone else safe, but can’t keep safe themselves. And third, we need to remember that prisoners are making pennies per hour to produce these essential goods. I guess it is naked capitalism in its purest form.

JERRI-LYNN SCOFIELD: Any question (s) I should have asked but didn’t?

MICHELE DEITCH: That’s a lot already!

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