Today nearly 2.3 million people are incarcerated in the U.S., distributed across a patchwork criminal justice system of over 7,100 prisons, jails, correctional facilities and detention centers. And what they all have in common is that they are quite likely confined to Covid-19 hot spots.
At the outset of the pandemic, national attention was either on cruise ships, which appeared to be viral petri dishes of captive passengers destined to all become infected, or how each of us could possibly survive household confinement with just Zoom. While some were also focused on whether Joe Exotic should actually still be in prison (what is this guy from Oklahoma doing with 197 tigers?), the tragic dilemma of life behind bars did not become a topic of discussion until late March; by then, Covid-19 was spreading rapidly throughout many of the country’s most notorious prisons.
Over the course of two weeks in late March, the number of Covid-19 cases in Cook County jail in Chicago spiked from 2 to 238 in a population of 4,500 prisoners (today it is over 500 cases) – and in a setting where systematic testing does not exist, most likely severely understating the true extent of infection. And this does not even include the 115 prison staffers who also tested positive in that two-week window. With over 600k total Covid-19 cases in a country of approximately 330 million people, the infection rate in prisons is many orders of magnitude worse for those in captivity.
Before tackling some of the emerging ethical, and frankly practical, implications this raises, where one is incarcerated meaningfully determines one’s risk of exposure. Each year nearly 600k people are sent to prison, yet over 10.6 million people are arrested and sent to jail (which is very different than prison). It is estimated that 200k people are in and out of jail every week, creating a profound and little understood disease vector back into populations at risk. A fully 74% of people in jails are actually not yet convicted of a crime – they are unable to post bail or are awaiting the next step in the judicial process. Median bail for a felony in America is $10k – an insurmountable hurdle for many. While statistics are shockingly hard to determine, it is estimated that between 80k – 100k people are currently in solitary confinement, presumably at relatively low risk of Covid-19 infection.
In addition to the inexcusable racial inequities created by the criminal justice system, it is also well understood that the prison population has unique and significant health issues, particularly when compared to the general population. According to The Prison Policy Institute, across a number of critical chronic health conditions, the prevalence among prisoners far exceeds what is present for those outside of the criminal justice system. All of the conditions highlighted below significantly increases the risk of death when infected with Covid-19, making captivity an even more daunting reality for many vulnerable prisoners.
Should a first-time offender arrested for a non-violent crime now be placed in such an environment? What about the elderly prisoner having served most of his sentence – should he be released early? The pandemic has raised many profound health-related questions which the Federal Bureau of Prisons (FBP) is scrambling to sort out. Last month, the FBP instituted a policy which mandates that all prisoners are to be secured in their cells for 14 days, which is set to expire today.
Partially in response, the Prison Policy Institute released five recommendations to reduce the virulent spread of Covid-19 in the prison system: (i) release medically fragile and elderly prisoners; (ii) lower jail admission rates to reduce “churn;” (iii) limit unnecessary parole and probation meetings; (iv) cease revocation of release for technical parole violations; and (v), do not charge medical co-pays that dissuade prisoners from seeking treatment. But do these proposals start to impede on the rights of the general population, perhaps being put at further risk by these prisoners? We shall see as the American Civil Liberties Union recently filed suit advocating for the compassionate release of those at highest risk. Super complicated issues.
There is clearly evidence of far fewer arrests since the pandemic took hold of the country. The New York State of Criminal Justice Services recently reported that crime in New York City declined in March over 43% year-over-year. Is that because there is less crime or that the criminal justice system is trying to lessen the health burden on the prison system by “slow walking” cases?
Notably, there is a significant for-profit prison ecosystem that has built up around the U.S. criminal justice system, from food concessions, telephony services and healthcare services. There are a number of private prison operators; two of the most notable public companies include Corrections Corporation of America (now “CoreCivic”) and GEO Group, Inc, both nearly $2.0 billion in market capitalization. It is estimated that 8.4% of all prisoners are housed in private for-profit prisons. According to Private Prison News, these facilities generally have worse conditions than government-controlled locations. In 2016, the U.S. Department of Justice reported that privately managed federal facilities were less safe and more punitive than other federal prisons.
Underscoring these significant concerns, in 2014 an important study of Brazilian prisoners infected with tuberculosis found that they represented 8.4% of all cases in the country yet were less than 0.3% of the general population. Over a five-year period, when TB rates in the nonincarcerated population declined, overall infection rates in Brazil increased in large measure due to the “churning” of patients in/out of the justice system. An ominous study as one looks at the current pandemic.
Perhaps lost among the news that Rikers Island in New York just released 650 non-violent prisoners with less than a year to run on their sentences or that Iran recently freed 25% of its prison population, was the fact that even Michael Avenatti was released from prison due to Covid-19 concerns.
Arguably more shocking, bookings for cruises in 2021 are up 40% according to CruiseCompete.com – who are those people?