Law360 is providing free access to its coronavirus coverage to make sure all members of the legal community have accurate information in this time of uncertainty and change. Use the form below to sign up for any of our weekly newsletters. Signing up for any of our section newsletters will opt you in to the weekly Coronavirus briefing.
Sign up for our Access to Justice newsletter
You must correct or enter the following before you can sign up:
Thank You!
Law360 (May 31, 2020, 8:02 PM EDT )
.jpg) |
| Marc Levin |
With more than half of the top 50 locations[1] with the most COVID-19 infections being jails and prisons, many lockups have gone into lockdown,[2] which means that programming is suspended and those housed there must remain in their cells for virtually the entire day. At least 300,000 prisoners across the country have been affected by lockdowns.[3] In Louisiana, the Department of Corrections brought individuals housed in parish jails to Camp J, a solitary confinement wing of the Angola prison that was closed in 2008 amid abysmal conditions.[4]
Of course, corrections systems are right to pursue quarantines and medical isolation among the strategies for protecting the heath of both staff and those who are incarcerated. However, several considerations must be heeded to ensure these interventions do not devolve into prolonged solitary confinement that unduly burdens the broader health and individual liberty of people behind bars.
First, quarantines and medical isolation must be distinguished operationally from prolonged solitary confinement. Second, limitations on the capacity of systems to deliver programming that is a condition of parole must not delay release when such programs can be completed in the community. Finally, correctional agencies should take other steps such as boosting sanitary protocols to safeguard facilities so they are not solely reliant on restrictive approaches.
Differentiating punitive solitary confinement from quarantines and medical isolation is critical.[5] The U.S. Department of Justice has defined solitary confinement as "removal from the general inmate population, whether voluntary or involuntary; placement in a locked room or cell, whether alone or with another inmate; and inability to leave the room or cell for the vast majority of the day, typically 22 hours or more."[6]
This parallels internationally recognized standards that focus on at least 22 hours of isolation and embody research showing that periods of 15 days or more in such settings jeopardize physical and mental health.[7] Indeed, research has not only demonstrated that prolonged segregation leads to countless medical problems from sleep deprivation to paranoia, but also that it endangers the public through higher rates of recidivism upon release.[8]
Punitive solitary confinement typically results from disciplinary violations, which can be as minor as possessing tobacco or failing to get in a line as instructed, as well as more serious violations involving physical altercations. Punitive solitary confinement often involves the loss or diminishment of privileges, such as the ability to make calls, access reading materials, and engage in recreation. About 5% to 8% of America's prisoners are estimated to be in punitive solitary confinement on any given day.[9]
Such punitive solitary confinement must be distinguished from quarantines and even medical isolation.
First, many practices can fall under the broad label of a quarantine that don't necessarily involve restricting movements and privileges of individuals within a facility. For example in a system such as Texas with more than 100 state-run prisons and at least 3,253 known COVID-19 cases among both staff and those incarcerated, it could make sense to dedicate one or more prisons for the infected, particularly in an area such as Huntsville, which has five prisons.[10] Quarantines could also involve separating infected populations across different wings of the same prison.
Of course, many factors must be considered, including the availability of testing, findings related to reinfection and immunity that are still emerging, and availability of medical care within a prison and the community surrounding it. The latter point illustrates how this challenge affects all Americans, particularly those in rural communities with prisons and limited hospital capacity. For example, in Ohio, more than 80% of the Marion County Correctional Institution's inmates has tested positive, and the prison — through its workers — was linked to half of the community spread.[11]
The lines are most likely to be blurred between punitive solitary confinement and medical isolation. While there are limitations associated with many antiquated and overcrowded prisons, corrections leaders must insist on ensuring that the theoretical distinctions between the two are manifested in practice.
First, medical professionals who work in corrections should be central to decisions about placing someone in medical isolation — and how long they must remain there. Second, privileges, including access to phone calls, written communication and commissary products must be maintained.
With in-person visits understandably suspended at most prisons, some states such as Oklahoma are temporarily providing a limited number of free phone calls.[12] Additionally, recreational and exercise opportunities should continue with appropriate social distancing when in congregate environments.
This is also an opportunity for corrections systems to take advantage of technologies to ensure that even when a facility is in lockdown or individuals are medically isolated, educational content can be provided. For example, some prisons have received donations of tablet computers, which include firewalls to prevent inappropriate use. While this is welcome, correctional systems should avoid arrangements with specific corporations, such as the one in West Virginia, where inmates must pay three cents a minute to read books on the tablet (the books are in the public domain).[13]
Observing these distinctions is not only essential to liberty and dignity, but also necessary to minimize the number of prisoners who refrain from seeking medical assistance when they are sick for fear of being placed in a setting little or no different from punitive solitary confinement. An April 15 article on the impact of COVID-19 on Michigan prisons indicates that inmates hid their symptoms because they did not want to be quarantined, with some citing fear of losing contact with friends and family.[14]
Another important consideration is the role that lockdowns and similar restrictions can play in preventing the completion of programs, thereby delaying the release of individuals who otherwise would have been paroled or earned sufficient time through such programs to complete their sentences. For example, in Oregon, COVID-19-related suspensions in programming have resulted in at least 200 nonviolent individuals staying in prison longer than they would have otherwise.[15]
This is counterintuitive, given that prisons and nursing homes are two of the sites where people are at the greatest risk of infection and death. For this reason, leaders such as Oklahoma Gov. Kevin Stitt,[16] Colorado Gov. Jared Polis[17] and Maryland Gov. Larry Hogan[18] have issued orders to expedite the release of those in certain categories after a individualized assessment, such as geriatric and medically fragile individuals and those who are low-risk and near the end of their sentence.
Corrections agencies must implement alternatives to ensure disruptions in programming do not delay release. For example, they can reconfigure delivery of counseling and other programs behind bars so that it can occur through video or in rooms where individuals are at safe distances from one another. Alternatively, these programs can in many cases be delivered following release through either the parole agency or a nonprofit provider.
An April Council of State Governments Justice Center survey of reentry providers found that 45% are experiencing cash flow challenges due to the current crisis, so contracts to deliver programming to returning citizens could help them keep their doors open at a critical time.[19] Of course, parole agencies and nonprofit reentry providers are subject to the same guidelines as others on social distancing, but this is much easier to accomplish outside of a prison.
Finally, prisons and jails must implement strategies beyond quarantining and medical isolation to reduce the casualties from COVID-19 for those who are incarcerated, correctional staff, and the communities around these facilities. Expediting releases based on individualized reviews to ensure public safety not only benefits those who are transitioned to the community before they become infected, particularly the elderly and medically frail, it also alleviates dangerous overcrowding.
For example, Nebraska has been reported at 158% capacity[20] and Alabama at 100% over capacity.[21] Not only do more crowded prisons promote the spread of disease, they feed tension among inmates and staff, leading to disciplinary violations and violence that contribute to greater use of punitive solitary confinement.[22]
For all who are incarcerated, many steps can be taken to prevent the spread of COVID-19 beyond the quarantining and medical isolation. Fortunately, prisons and jails are stocking up on personal protective equipment and hand sanitizer, and in an increasing number of cases making their own. Some systems are purchasing ultraviolet light machines[23] typically used by hospitals, which have shown success[24] in killing previous types of coronaviruses.
Correctional agencies, like many other institutions, are also seeking to procure tests, which is particularly important given that staff who work in prisons come and go every day and are also vectors for spreading the virus to their families. Given limited supplies of PPE and tests, prisons and jails should prioritize inmates and staff who are 50 and older and have preexisting medical conditions, ranging from asthma to diabetes, that have been linked to higher COVID-19 morbidity rates.
One innovative option is to train prisoners to earn a certification in sanitation known as the Occupational Safety and Health Administration Hazardous Waste Operations and Emergency Response.[25] The credential, which has two levels corresponding to 24 and 40 hours of training, respectively, would not only enable people who are incarcerated to sanitize their own environments but also give them a skill that stands to be highly marketable upon release.
Sadly, high numbers of incarcerated people, correctional staff and community members living near correctional institutions are becoming infected, and many will continue to become seriously ill and, in some cases, pass away. As systems take steps to minimize the damage, they must also ensure that progress in reducing punitive solitary confinement does not become another casualty of this pandemic. After all, over the last decade, jurisdictions ranging from Colorado to Maine and Mississippi have made remarkable progress in scaling back prolonged solitary confinement while at the same time reducing prison violence.[26]
In addition to avoiding backsliding, this crisis provides an opportunity to rethink the very structure of correctional institutions. Some prisons in the U.S. are more than a century old and many lack adequate ventilation. This not only accelerates the spread of viruses,[27] but may also lead to transmission of higher viral loads, which new research[28] indicates is correlated with more serious sickness.
As dozens of states have adopted smart reforms[29] to safely reduce prison populations, and as crime has declined,[30] policymakers have rightly focused on closing prisons rather than building them. Still, a 2019 Vera Institute report[31] found that many counties were planning or constructing new jails. Improving ventilation[32] so air is quickly refreshed must now be a priority both for new facilities and as part of retrofitting existing ones.
This pandemic has cast a harsh but also revelatory spotlight on the most vulnerable segments of society, including those incarcerated in our nation's darkest places. But it is also creating a moment to reimagine existing systems to better align them with our core values. If we protect the last remaining liberties of those behind bars and remember that every person has value, we can not only minimize misery but usher in a new era in which our corrections system lives up to our highest aspirations.
Marc Levin is vice president of criminal justice policy at the Texas Public Policy Foundation and chief of policy and innovation for Right on Crime, an initiative of the foundation.
"Perspectives" is a regular feature written by guest authors from the access to justice field. To pitch article ideas, email expertanalysis@law360.com.
The opinions expressed are those of the author(s) and do not necessarily reflect the views of the firm, its clients or Portfolio Media Inc., or any of its or their respective affiliates. This article is for general information purposes and is not intended to be and should not be taken as legal advice.
[1] New York Times, Coronavirus in the U.S.: Latest Map and Case Count, New York Times (May 29, 2020), https://www.nytimes.com/interactive/2020/us/coronavirus-us-cases.html#clusters.
[2] For example, see Caroline Covington, Stuck In Limbo, Thousands Of Paroled Texas Prisoners Can't Leave Lockup, Texas Standard (May 29, 2020), https://www.texasstandard.org/stories/stuck-in-limbo-thousands-of-paroled-texas-prisoners-cant-leave-lockup/?_ga=2.228469081.578644708.1590783251-48379390.1590783251; Deborah Becker, Hampden County Jail Enters Lockdown After Coronavirus Outbreak, WBUR (May 27, 2020), https://www.wbur.org/news/2020/05/27/eight-inmates-test-positive-coronavirus-ludlow-jail; Phillip Jackson, Lockdowns, strict measures making life difficult for Maryland prisoners. But are they keeping them alive? The Baltimore Sun (May 22, 2020) https://www.baltimoresun.com/coronavirus/bs-md-less-time-families-inmates-jessup-coronavirus-20200522-kfc72nzbszajvj6f4xsujldefi-story.html; Scott Gordon, Prisons Go on Lockdown As Coronavirus Spreads Behind Bars, NBC DFW (April 8, 2020), https://www.nbcdfw.com/news/coronavirus/prisons-go-on-lockdown-as-coronavirus-spreads-behind-bars/2348103/.
[3] Keri Blakinger, What Happens When More Than 300,000 Prisoners Are Locked Down? The Marshall Project (April 15, 2020), https://www.themarshallproject.org/2020/04/15/what-happens-when-more-than-300-000-prisoners-are-locked-down.
[4] Nicholas Chrastil, Lawsuit filings reveal new details about use of Angola facility to house coronavirus patients, The Lens (May 6, 2020), https://thelensnola.org/2020/05/06/lawsuit-filings-reveal-new-details-about-use-of-angola-facility-to-house-coronavirus-patients/.
[5] David Cloud, JD, MPH, Dallas Augustine, MA, Cyrus Ahalt, MPP, & Brie Williams, MD, MS, The Ethical Use of Medical Isolation –Not Solitary Confinement – to Reduce COVID-19 Transmission in Correctional Settings (April 9, 2020), https://amend.us/wp-content/uploads/2020/04/Medical-Isolation-vs-Solitary_Amend.pdf.
[6] U.S. Department of Justice Report and Recommendations Concerning the Use of Restrictive Housing (January 2016), https://www.justice.gov/archives/dag/file/815551/download.
[7] The United Nations Standard Minimum Rules for the Treatment of Prisoners (the Nelson Mandela Rules (April 20, 2017), https://www.unodc.org/documents/justice-and-prison-reform/Nelson_Mandela_Rules-E-ebook.pdf.
[8] Marc Levin, "A Window Into Solitary Confinement and Its Many Alternatives, Texas Public Policy Foundation (January 2020), https://files.texaspolicy.com/uploads/2020/01/17165529/Levin-Solitary-Confinement-Alternatives-v2.pdf.
[9] Alison Shames, Jessa Wilcox, and Ram Subramanian, Vera Institute (May 2015), https://www.vera.org/downloads/publications/solitary-confinement-misconceptions-safe-alternatives-report_1.pdf.
[10] Texas Department of Criminal Justice, COVID-19 Updates (last accessed May 29, 2020), https://www.tdcj.texas.gov/covid-19/index.html.
[11] Ohio Department of Rehabilitation and Correction, COVID-19 Inmate Testing, https://coronavirus.ohio.gov/static/reports/DRCCOVID-19Information.pdf; Sarah Volpenhein, Marion prison's virus outbreak seeps into public, Columbus Post-Dispatch (April 25, 2020), https://www.dispatch.com/news/20200425/marion-prisonrsquos-virus-outbreak-seeps-into-public.
[12] Kathryn McNutt, Prison Inmates to Get Temporary Free Calls, Oklahoma Watch (March 18, 2020), https://oklahomawatch.org/2020/03/18/prison-inmates-to-get-temporary-free-calls.
[13] C.J. Ciaramella, West Virginia Inmates Will Be Charged by the Minute to Read E-Books on Tablets, Reason Magazine (November 22, 2019), https://reason.com/2019/11/22/west-virginia-inmates-will-be-charged-by-the-minute-to-read-e-books-on-tablets.
[14] Gus Barns, Michigan inmates hide coronavirus symptoms to avoid prison quarantine, Michigan Live (April 15, 2020), https://www.mlive.com/public-interest/2020/04/michigan-inmates-hide-coronavirus-symptoms-to-avoid-prison-quarantine.html.
[15] Noelle Crombie, Coronavirus precautions in Oregon prisons have unintended consequence for inmates in treatment, The Oregonian (April 24, 2020), https://www.oregonlive.com/crime/2020/04/coronavirus-precautions-in-prisons-have-unintended-consequence-for-inmates-in-treatment.html.
[16] Hicham Raache, Gov. Stitt approves hundreds of prison commutations to mitigate coronavirus spread, KFOR News (April 10, 2020), https://kfor.com/health/coronavirus/gov-stitt-approves-hundreds-of-prison-commutations-to-mitigate-coronavirus-spread/.
[17] Allison Sherry, Colorado Corrections Agrees To Release Some Inmates Early To Reduce Prison Populations, Colorado Public Radio (April 23, 2020), https://www.cpr.org/2020/04/23/colorado-corrections-agrees-to-release-some-inmates-early-to-reduce-prison-populations/.
[18] Luke Broadwater, With coronavirus spreading, Maryland Gov. Hogan signs order for expedited release of hundreds of prisoners, Baltimore Sun (April 19 2020), https://www.baltimoresun.com/coronavirus/bs-md-pol-hogan-prisoners-20200419-7mzvooaoxfbyngowb2xdeucrme-story.html.
[19] Council of State Governments Justice Center, Survey Shows Reentry Services Halting Across U.S. (April 22, 2020), https://csgjusticecenter.org/survey-shows-reentry-services-halting-across-u-s/?mc_cid=13c23b1fd9&mc_eid=69cb7f9ac7.
[20] JoAnne Young, New 1,600-bed prison between Lincoln and Omaha proposed, Lincoln Journal-Star (February 18, 2020), https://journalstar.com/legislature/new--bed-prison-between-lincoln-and-omaha-proposed/article_b7924d28-5968-5fce-8802-220309c6876c.html.
[21] Alabama Public Radio, ... and justice for all (December 27, 2019), https://www.apr.org/post/and-justice-all-alabama-public-radio-1.
[22] Robert Sorrell, Experts: Overcrowded jails affect inmate, staff mental health, Bristol Herald-Courier (October 18, 2019), https://www.heraldcourier.com/news/experts-overcrowded-jails-affect-inmate-staff-mental-health/article_ed52ee89-4bf6-5bec-8125-0fe11052fbe3.html.
[23] Alysia Santo, Jails Turn to UVC Robots To Fight Coronavirus, The Marshall Project (May 13, 2020), https://www.themarshallproject.org/2020/05/13/jails-turn-to-uvc-robots-to-fight-coronavirus.
[24] Lindsay Kalter, Coronavirus Puts UV in the Disinfectant Spotlight, WebMD (May 19, 2020), https://www.webmd.com/lung/news/20200519/coronavirus-puts-uv-in-the-disinfectant-spotlight.
[25] Occupational Safety and Health Administration, HAZWHOPER FAQ (May 21, 2020), https://www.osha.gov/html/faq-hazwoper.html.
[26] Marc Levin, "A Window Into Solitary Confinement and Its Many Alternatives, Texas Public Policy Foundation (January 2020), https://files.texaspolicy.com/uploads/2020/01/17165529/Levin-Solitary-Confinement-Alternatives-v2.pdf.
[27] Joseph Darius Jaafari, Prison design creates ideal environment for coronavirus, Gettysburg Times (April 17, 2020), http://www.gettysburgtimes.com/news/covid-19/article_0b1d8983-1978-5602-a41c-1bf2d1a93aa8.html.
[28] Alex Hogan, How much of the coronavirus does it take to make you sick? The science, explained, Stat News (April 14, 2020), https://www.statnews.com/2020/04/14/how-much-of-the-coronavirus-does-it-take-to-make-you-sick/.
[29] Pew Charitable Trusts, 35 States Reform Criminal Justice Policies Through Justice Reinvestment (July 2018), https://www.pewtrusts.org/-/media/assets/2018/07/pspp_reform_matrix.pdf.
[30] U.S. Disaster Center, Crime Rates 1960-2018, http://www.disastercenter.com/crime/uscrime.htm.
[31] Chris Mai, Mikelina Belaineh, Ram Subramanian, and Jacob Kang-Bro, "Broken Ground: Why America Keeps Building More Jails and What It Can Do Instead," Vera Institute (November 2019), https://www.vera.org/downloads/publications/broken-ground-jail-construction.pdf.
[32] Robin Young and Allison Hagan, Air Conditioning Systems Can Spread The Coronavirus, Study Suggests, WBUR (May 19, 2020), https://www.wbur.org/hereandnow/2020/05/19/air-conditioning-coronavirus.
For a reprint of this article, please contact reprints@law360.com.
