When Markice Armstrong was arrested at a Louisville, Kentucky, protest on May 31, he and more than a dozen other protesters were stuffed into a police van. “We were all shoulder to shoulder,” he says, and his restraints were so tight that he had to lean into another arrested protester in the paddy wagon on the way to the jail to manage the pain. Once Armstrong arrived at the jail, he was held for about 15 hours in a crowded cell with nearly three dozen men, who shared a single cup for water and were not offered masks or hand sanitizer while being held. Women were kept in a different cell, where they huddled together for warmth though they could see blankets just outside their holding cell.
That night in Louisville, more than 100 protesters were taken to jail, and some forged powerful new friendships. I spoke with six people who are part of a group they call “J-5,” after the cell block where men were detained the night that they were all arrested. In the 10 days between when they met in jail and when I spoke to them, “J-5” has become a movement within the movement, with about 20 people who text with one another every day, attend protests together, and post updates to social media with the hashtag #j5protest. Ashanti, a J-5 member, was already wary of going out to protests because she has asthma; now, she’s worried she could have contracted COVID-19 from jail conditions. She got tested earlier this week but as of Thursday morning had not yet received the results. A least one J-5 member recently tested positive for COVID-19, and the group is bracing for an outbreak as several of them wait for their test results to come back. “I’ll be surprised if there aren’t more than that,” says Stephanie Kornexl, another J-5er.
Since police killed George Floyd on May 25, more than 10,000 people across the country have been arrested at the ensuing protests for mostly minor infractions—defying cities’ hastily instituted curfews is a common charge. Now public health experts are concerned that police tactics will hasten the spread of COVID-19. Many have already decried the risks associated with using tear gas on crowds of protesters, especially during a pandemic that affects the respiratory system. Kettling —the police tactic of corralling a crowd into a small space and then making arrests—forces protesters to jam up next to one another and has long been decried as dangerous, but is all the more dangerous in the midst of a pandemic since it makes social distancing impossible. And there’s danger inherent in arresting protesters at all, say public health experts. Given what we know about the virus, keeping people in enclosed indoors spaces—like jail cells—is a significant transmission risk factor. “In the coming weeks, people are going to be evaluating whether or not protests have contributed to an increase in COVID cases, and we have to consider the role of jailing protesters in any increase we may see,” says Laura Hawks, a physician and researcher at Harvard Medical School who studies health disparities and recently published a paper in the Journal of the American Medical Association Internal Medicine about COVID-19 in jails.
Protesters in other cities have stories similar to those from the J-5. Drew Dielman, who was arrested at a Cincinnati protest on May 31 for violating curfew, says he and about three dozen other protesters filled the bus that took them to a crowded holding pen outside the Hamilton County Justice Center. His mask was removed during the arrest process, and he noticed only a handful of police officers wearing masks. Another protester, who wanted to remain anonymous because she has a pending criminal charge and her lawyers advised her not to talk to the press, said there was no social distancing in the cells where she was kept in Columbia, South Carolina. Though she was able to keep her mask on for the first two hours while she was waiting to be processed, her mask was taken from her when she was moved to a holding cell. Protesters in Washington, too, told the DCist that it was difficult to maintain distance from other arrested protesters, and disputed the D.C. police’s claims that protesters were kept in an area to allow for social distancing and were given masks and hand sanitizer.
Forcing people to ride in paddy wagons or buses, then wait hours in crowded areas to be processed, is a recipe for COVID-19 spread—and that inevitably has a ripple effect when those detained are released back to their families or resume work in the community. The solution to that is to simply not arrest nonviolent offenders, like those peacefully protesting past curfew. “You can’t jail someone without legitimate reason; that’s always a human rights violation. But in the setting of COVID-19, it can turn into a death sentence,” says Stephanie Woolhandler, a physician and professor of public health and health policy at City University of New York’s Hunter College, and Hawks’ co-author. “The police are acting doubly irresponsibly when they incarcerate people unnecessarily by increasing the entire community’s risk of COVID transmission.” Some protesters are trying to be mindful of this; Willa Tinsley, another member of the J-5, told me that because her brother is immunocompromised, she socially distanced from her family for the first week after she was released from jail.
A recent analysis of data from Chicago’s Cook County Jail, a COVID-19 “hot spot,” suggests that jail cycling and arrests are linked to about 16 percent of COVID-19 cases in Illinois, independent of other variables like race, poverty, population density, or public transit utilization. (When all those variables are considered together, they can account for 60 percent of all cases in Chicago and about half of the cases in Illinois.) “What our studies find is what you can describe as a multiplier effect,” says study co-author Eric Reinhart, a Harvard anthropology researcher. Essentially, for every person who cycles through the jail, there were roughly two additional COVID-19 cases in their ZIP code in the following three to four weeks. For cities in which thousands of protesters were arrested—Los Angeles, for instance, arrested more than 2,700 people between May 27 and June 2, many of whom cycled through jails—that could be a significant spike.
Under normal circumstances, about 10 million people rotate through jails each year, which means that even when police aren’t jailing large numbers of protesters, the justice system could be spreading COVID-19. “If you think about that on a national scale, this [effect] is on the scale of millions of cases in the U.S.; certainly within a year, this is going to be at least hundreds of thousands of people in the U.S.,” says Reinhart. Reinhart and his co-author, law and economics professor Daniel Chen, are already looking at data in other cities, such as New York and Los Angeles, as well as nationally. “We expect this general dynamic is not specific only to Cook County—it’s about bigger structures of excessive arrest,” he says. Our incarceration system has always been a breeding ground for illness and mistreatment, but the pandemic is giving us a new glimpse into those effects, since researchers are now able to study the link between virus transmission and jailing.
Reinhart is convinced that the only solution is to stop arresting protesters, as well as people committing any nonviolent offenses. “The vast majority of arrests in America are completely unnecessary for public safety,” he says, citing data from Cook County Jail that out of the 100,000 people booked at the jail in 2016, 94 percent were arrested for nonviolent offenses. “These are not criminals; they’re pretrial detainees,” he says. “There’s no public safety reason to arrest and jail them.”
If police do insist on arresting protesters, they could avoid transporting people via crowded paddy wagons and buses and skip the jail time altogether by issuing tickets or summons instead. Tickets and summons come with their own challenges—for instance, a process that eventually incarcerates those who can’t pay tickets or fail to appear at court dates may also put people at risk—but avoids some serious, immediate COVID-19 risks.
In some cases, even after protesters have been detained, police end up giving them citations anyway. Dielman told me that after being held for 12 hours in Cincinnati, he and many others held with him were released with citations. I asked Dielman why the police would go through the trouble of transporting and holding people for hours just to cite them. “That’s the question I’ve been asking myself for the last week and a half,” he says. “If they just gave me a yellow slip and a court date anyway, why did they have to keep me all night?” This week, the Cincinnati City Council announced several options it’s asking its city solicitor to consider allowing to arrested protesters; among them is the possibility of the city dropping charges if those charged sign a “waiver of civil liability”—in other words, if they promise not to sue the city for their arrest.
Meanwhile, Dielman’s waiting to see whether he gets COVID-19. When he and his friends first started going to protests, they joked about getting sick. “I tend to cope with things through humor, so it was like, ‘Which is the first of us to go? Who do you think is going to be the first to die of coronavirus?’ ” But after Dielman’s arrest, his perspective changed. “It was like, this is not a joke; this is real.” The good news is that when we spoke, it had been 10 days since his arrest, and no one he was arrested with has shown symptoms yet or tested positive. In another few days, he’ll be past the long end of virus’s typical incubation period, which is about two weeks. “It might all just work out,” he says.
Future Tense is a partnership of Slate, New America, and Arizona State University that examines emerging technologies, public policy, and society.
