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

For too many officials, punishment is more important than fighting the coronavirus, writes Brennan Center Fellow Andrew Cohen.

April 8, 2020

The Covid-19 outbreaks now surging through many of the nation’s prisons and jails weren’t just predictable, they were predicted. And not just by the prisoners themselves and their family members in increasingly desperate tones over the past month but also by some sheriffs and jailers and corrections officials and their union representatives. And not just by those behind bars but by lawyers and doctors and criminal justice advocates and 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 it found its way into cramped, dirty, overcrowded cells.

These personal cries for helpthese warnings, these personal 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 jails were obvious breeding grounds for the virus, that it could not be contained behind bars, that the inevitable outbreaks wouldn’t 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 their eternal credit, some officials have heard the call and done the right thing. Thousands of men and women were released from prisons and jails over the past month and many more should be released soon. But in too many other places, politicians and prosecutors waited for the virus to enter their facilities before acting to save prisoners. And in some places even the spread of the virus and its obvious threat to everyone in or near a prison hasn’t been enough to convince some officials that there are more important “public safety” interests at stake than continuing to imprison at-risk people in the name of “justice.”

Like so much else about America’s criminal justice systems, a prisoner’s fate amid the pandemic is an arbitrary affair, largely determined by jurisdiction. If you were released from confinement in the past month it’s largely because you happened to have an enlightened jailer, or compassionate judge, or broad-minded prosecutor, or because you had particularly ferocious advocates fighting 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, nearly 300 prisoners and staff have tested positive there, nearly 4 percent of the entire state’s number of 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, where four more prisoners were confirmed positive over the weekend. There, as attorney Greg Lipper pointed out, lawyers for the District’s 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 DOC’s 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 equally tardy and tragic. As my colleagues at The Marshall Project reported 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 briefs opposing reasonable release requests. 

Today? At least eight federal prisoners have died from Covid-19 and 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 is also a COVID-19 outbreak at the low-security federal prison in Danbury, Connecticut. The Justice Department waited until these outbreaks occurred and then swiftly 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. We don’t even know for sure that the Bureau of Prisons will zealously implement the new plan.

These corrections officials — and sheriffs and judges and prosecutors and legislators — didn’t have to wait until it was too late to 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 even when the rest of us knew they didn’t. And if they did release some prisoners it was a paltry few. Far too few. 

It’s negligence at best, deliberate indifference at worst. Robert Ferguson, the author and professor, years ago described the reasons why America has always been so spectacularly harsh in its treatment of prisoners. Never has that theory been proven more clearly than it has been in the past month. Except the cruelty shown the prisoners who have been kept locked up as the virus spreads doesn’t 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 author’s own and not necessarily those of the Brennan Center.