Jurisprudence

What Officials Can Do to Keep Omicron From Ravaging One of Our Most Vulnerable Populations

Tomoka Correctional Institution with barbed wire fencing.
In April 2020, Tomoka Correctional Institution is seen in Daytona Beach, Florida had the highest number of COVID-19 cases in prison.  Paul Hennessy via Reuters Connect

Throughout the pandemic, American jails and prisons have been some of the most contagious hotspots in the country. The UCLA Law COVID Behind Bars Data Project has found that people in prison have experienced COVID-19 at rates more than triple that of their non-incarcerated peers and died of the virus at a rate more than twice as high.

Last winter was especially dangerous behind bars. From the middle of December through February alone, more than 100,000 incarcerated people tested positive for COVID-19 and at least 727 people were reported to have died of the virus. During the same window of time, more than 31,000 prison employees tested positive for COVID-19 and at least 73 died.

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As the Omicron variant threatens to reignite the pandemic this winter and the Biden administration takes concrete measures to prepare for a likely surge, history does not need to repeat itself.

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What went wrong last year? Jails and prisons have long been overcrowded and unhygienic environments. During the pandemic, people in these facilities have often lacked access to personal protective equipment. Testing has been sparse. And while public health experts have called for depopulation of jails and prisons to prevent outbreaks, governors and correctional officials mostly declined to implement the kind of widespread releases needed, and population levels have remained high. In fact, in many states, prison releases have actually slowed during the pandemic.

People in jails and prisons have paid the price, but so have those of us on the outside, especially in surrounding communities. One report found that rural counties that held more incarcerated people have seen significantly higher COVID-19 numbers, and that in the summer of 2020, mass incarceration was responsible for more than half a million new cases of COVID-19. Another found that as many as 15 percent of all COVID-19 cases in Illinois could ultimately be traced back to the Cook County Jail.

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This time around, we know what must be done to save lives and prevent outbreaks. Officials at all levels of the criminal legal system should be preparing for a new wave of case surges now by taking a number of measures that are evidence-based and backed by experience and science.

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First, officials at all levels of the criminal justice system must take steps now to decarcerate. Since the start of the pandemic, public health experts have been urging depopulation to achieve lower density inside—both in prisons, where aging populations are particularly vulnerable to COVID-19, and in jails, which experience high turnover and pose a particular risk of spread to nearby communities.

Decarceration requires action from officials at all levels of the criminal justice system. Prosecutors should decline to charge, at least for low-level offenses, and decline to seek bail so as to avoid exposing people to COVID-19 merely because they cannot afford bail. Judges should grant population reduction requests and petitions for individual release. Governors, state legislatures, corrections commissioners, and sheriffs should all use their executive and legislative authorities to reduce jail and prison populations quickly.

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Second, prison officers must be subject to vaccine mandates.

Prison employees are key vectors for viral transmission, inadvertently bringing the virus into prison facilities from surrounding communities—and back into their communities. In May, June, and July of this year, half of the COVID-19 outbreaks that occurred in California prisons could be traced back to infected staff members. Correctional employees are also public servants tasked with a professional and moral obligation to keep the people in their custody safe and free from harm.

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But despite the high stakes and the high risks of infection, vaccination rates among prison staff – where they are reported – are strikingly low. In Pennsylvania, just 48 percent of staff report being vaccinated. In Washington, just over 50 percent report being vaccinated. Most states, however, don’t report this number; in those jurisdictions, rates may be even lower.

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So far, we are aware of just seven states in which prison staff are required to be vaccinated. President Biden’s broader mandate, which will require companies with more than 100 workers to implement a vaccine mandate, would affect some prison systems. But because it is being issued through the Occupational Safety and Health Administration, the mandate would leave nearly two dozen state systems untouched.

Correctional employee unions recognized the importance of vaccines for their rank-and-file when they requested – and in most states received – prioritized access to vaccinations. Since then, those same unions have changed their tone and too few employees have made the choice to accept it.

Third, incarcerated people must be continually offered vaccinations and boosters. Although many incarcerated people have been vaccinated, some still have not.

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Some incarcerated people have been reluctant to accept COVID-19 vaccines, likely in response to an ugly history of medical experimentation on and abuse of people behind bars. Now that we have all seen firsthand just how safe and effective the vaccines are – and now that the Omicron variant is approaching – it is imperative that incarcerated people receive continued and constant access to vaccinations. Those who declined vaccines initially, opting instead to “wait and see,” must be allowed to change their minds and receive a vaccine. And all incarcerated people must be given meaningful access to booster shots – following the CDC recommendation that all adults receive one.

By our count, nearly 3,000 people have died and nearly half a million have been infected by COVID-19 behind bars. Countless more have been unable to see loved ones or participate in programming because the failed responses by those in power have prolonged the crisis.

We already know the cost of inaction. When Omicron comes, we don’t need to repeat the horrors of previous waves of the pandemic. But staving off further tragedy and misery requires acting boldly and quickly, and it requires following science over politics. Decarceration and vaccination will save lives.

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