As the number of people diagnosed with the coronavirus starts to creep up in states around the country, fears are rightfully sparking about the impact of this outbreak on a critically vulnerable group of people: those incarcerated in our jails and prisons. The danger of infection is high in these crowded, unsanitary facilities—and the risk for people inside and outside of them is exacerbated by the “churn” of people being admitted and released at high rates. For example, in Florida alone, more than 2,000 people are admitted and nearly as many are released from county jails each day.
These concerns are very real and should be urgently addressed. But there is another danger that is getting lost as we start to address them: that jails, prisons, and court systems may, in response to the pandemic, reflexively heighten restrictions on the people they have incarcerated, thereby worsening their conditions, and also chilling the criminal justice process by which their rights could be vindicated and their freedom granted.
Early statements and responses to the coronavirus from our carceral facilities are cause for alarm. Courts are ordering that the temperatures of people in jail be taken so that they can be held back from court if they have fevers. Visitation between those incarcerated and their family members is being rescinded; trials are being delayed. Lawyers are being encouraged to decrease the amount of visits they make to see clients who are incarcerated, and prisons are putting people on lockdown—locking them inside their cells, sometimes in solitary confinement.
When H1N1 hit in 2009, many jails and prisons reacted in precisely this way: by trying to impose segregation, isolation, and lockdown. When there was a mumps scare in New Jersey last year, the whole facility was placed on lockdown. These reactions are not new. But the spread and scale of COVID-19 are already different from other outbreaks. Jails and prisons, which are generally “congregate settings,” simply do not have the infrastructure to “contain” it. And even if they wanted to try, the growing understanding of the grave mental and physical impacts of solitary confinement on people—including long after they are released—makes it clear that we need to consider new options.
Keeping people trapped inside facilities under heightened restrictions will do less, not more, to protect the greater community. Movement between people on the inside and on the outside is ceaseless. And because carceral facilities cannot operate without staff, who move in and out of these spaces every day, heightened restrictions are largely futile. The only meaningful way to keep the most people safe is to decrease the number of people incarcerated.
In addition to the grave health concerns, these restrictive responses endanger the rights of people in jails and prisons to access the system that would allow for their cases to move forward, for resolution and closure, for the vindication of rights, and potentially for their freedom. In many cases, they jeopardize the system’s compliance with clear law about when incarcerated people need to be seen and heard by courts. We have such laws for good reason: People should not languish in jails or prisons without being able to access the courts that can hear—and potentially release—them. If incarcerated people are not brought to court, don’t get meaningful visits with their attorneys, and don’t have their cases heard, this is exactly what will happen.
If lawyers stop visiting their incarcerated clients, their clients’ cases will slow down, their rights to speedy and fair trials will likely be violated, and they will not benefit from the guidance and advice of the counsel to whom they are entitled. Substituting in person meetings or hearings with video doesn’t suffice; people need to be able to review documents together, including the discovery and evidence in their cases, and they need to be able to meet with an absolute guarantee of privacy. Indeed, the Montana Supreme Court ruled in 2009 that a Missoula County jail that restricted contact visitation between attorneys and clients in response to H1N1 violated their right of access to the courts. If incarcerated people are not brought to court for their hearings, their cases will likely not be addressed at all, thus indefinitely delaying the ability to be heard, to confront the evidence, and potentially to be exonerated. When our system makes the decision to prosecute someone, certain rights are triggered. And when it makes the extraordinary decision to remove a person from their home, their community, their family, it must be on the system to ensure that they are kept healthy and safe and that those rights are protected.
A hallmark of incarceration is that it strips people of autonomy and self-determination; a medical outbreak of this proportion shines a harsh light on the real-life effects of that deprivation. In addition to the loss of bodily autonomy—which carries dramatic implications during an outbreak such as this—it threatens the loss of self-determination to pursue a legal defense, to receive the advice of counsel, to be heard in court, and to fight for one’s liberty. Iran temporarily released 54,000 people from prison in the wake of this global pandemic. The United States must also consider releasing as many people as possible, among other measures, including decreasing the numbers of people being sent into jails and prisons in the first place. We must take responsibility for the crisis of mass incarceration we have created, which is now also a massive public health crisis waiting to happen. Prosecutors can stop seeking detention in many cases; judges can stop incarcerating people at the outset; and courts, politicians, and parole commissions can begin to release people who are already incarcerated. Allowing people to live in their own homes and communities will permit them to exercise control over their own bodily health, as well as their legal matters. Most importantly, they will not indefinitely languish inside a potentially infected vault with no recourse in sight.