“If you put thousands of vulnerable people in a situation where it’s more possible they contract this disease,” Mercedes Montagnes said recently, “it’s going to be just impossible to flatten the curve.”
Montagnes is the executive director of the Promise of Justice Initiative, which advocates for fair and humane treatment of people in the criminal-justice system. Like many people who work with detained individuals, she’s deeply worried about the new coronavirus, and about how prisons and jails are already responding to the threat it poses. Earlier this week, she was particularly concerned about PJI’s clients in the Louisiana State Penitentiary, more commonly known as Angola. Louisiana has the highest incarceration rate in the world, and the highest percentage of people serving life sentences without the possibility of parole, many of them at Angola. For those people—older, sicker, crammed together—coronavirus represents an extraordinary threat.
“Most people live in dormitory environments at Angola,” Montagnes told VICE. “They don’t have access to hand sanitizer. They can’t wash their hands whenever they want. They share a sink with many men. Many of them are old, many of them have chronic illness. They’re at high risk of contracting COVID-19 and having the most severe symptoms. And all these people are going to need medical intervention.”
At this point, it’s not a matter of if but when a coronavirus outbreak will hit a jail or a prison; the disease has already begun reaching its way into institutions across the country, and the only thing to do now is to try to limit the devastation. Legal advocates and organizations that work with incarcerated people have been trying, without much success, to deliver that message to state governments and the federal Bureau of Prisons. Earlier this week, led by the Southern Poverty Law Center, a coalition of civil rights groups and unions across the South wrote to the governors of Louisiana, Florida, and Mississippi with a set of immediate, concrete recommendations to limit how seriously coronavirus impacts detained people in those states. Among their most radical and urgent requests: free people from jails and prisons who don’t pose an imminent public safety risk (something one county jail in Ohio has already done).
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“The governors and localities should take any and all action they can to release individuals,” Jared Davidson told VICE. He’s a senior staff attorney at the SPLC, based in Louisiana, and coordinated the letter sent to the governor there. “That’s the number one thing to reduce the risk of harm, not just to individuals in these facilities but the risk of harm to people in the public. We know that these facilities are going to continue to exist. Staff is going to continue going in and out even if they're otherwise locked down. There’s a very real threat of reintroducing or introducing the virus into local communities through staff.”
James Craig agrees; he’s the director of the Louisiana office of the Roderick & Solange MacArthur Justice Center, a legal advocacy firm which often calls for better prison and jail conditions.
“One action that local judges, sheriffs, and jails across Louisiana should take now, as in, right now,” he told VICE, “is to immediately release individuals charged with misdemeanors from jail.” The maximum sentence for many of those people, he pointed out, is as low as 30 days, and is generally no more than six months. “Within the time that the virus is still expected to be a threat, these individuals will be entitled to their freedom. Failure to immediately release misdemeanor arrestees increases the risk of infection to these individuals, their families and the community as a whole.”
That's not happening in many places, though. Colin Reingold is the litigation director and senior counsel at Orleans Public Defenders. "The problem from our perspective is that our police department continues to arrest people for four-year-old misdemeanor warrants," he told VICE, "things where they could give them a summons for a couple months from now instead of booking them and bringing into the jail system," where they could be exposed to disease, or bring something in themselves. "Right now, we're seeing business as usual." (Speaking to Nola.com, New Orleans' mayor and police superintendent said laws will continue to be enforced as usual, while the district attorney's Office accused public defenders of trying to "encourage lawlessness." A spokesperson told the paper, "It is disheartening that the Orleans Public Defenders would seek to exploit this public health emergency by asking our police and courts to turn a blind eye toward criminal conduct.")
Many states have also responded by locking down jails and prisons: Louisiana, for instance, has suspended visitation at the state’s eight facilities for the next month or longer, the Advocate reports, and will also postpone Angola’s famous prison rodeo. Florida, California and Texas have also suspended visitation.
“While we understand that effort is necessary,” Mercedes Montagnes told VICE, “we think it’s important the prison respond to the needs of the families by providing free phone calls, and that they provide hand sanitizer and soap to those who are incarcerated, so they have an opportunity to do as much self help as they can. You can’t just close down visits in isolation.” In the meantime, she added, prisons and jails are “still charging exorbitant rates for phone calls,” ones most families with incarcerated loved ones can ill afford.
Meanwhile, at jail facilities, business is more or less continuing as usual, Jared Davidson says, creating a situation where anyone exposed to coronavirus in jail—a staffer, an attorney, or a detained person—could re-enter the community and sicken others.
“Folks need access to their criminal defense lawyers, their public defenders, their investigators,” Davidson says. “Criminal court proceedings are ongoing as of this morning. They could go into and out of court, exposing court staff and judges and members of the public who may be juries, and vice versa.” The government, he said, “often invokes public safety concerns to lock people up, but I think it’s equally clear that the government could take the public safety position by releasing people back into the community so they could do the kinds of quarantining that you and I are probably doing right now.”
In other places, like parts of Florida, court dockets have slowed or ground to a halt, meaning people who might otherwise be in and out of jail quickly are at risk for being detained for longer. That’s a potentially huge problem in jails, Charles Cofer said. He’s the public defender for Florida’s Fourth Judicial Circuit, in Jacksonville, Florida. “Our court system effectively has shut down except what we call first appearance courts. They are still operating on a twice a day basis. We’re trying to resolve as many of those cases as possible so our jail doesn’t go past its max capacity.“ In the meantime, he said, overcrowding makes a terrible situation worse, he added: “Right now our governor is recommending everyone shelter at home and avoid social contact to avoid transmission. If you have a jail that gets somebody in there who’s positive for COVID-19, it could spread very rapidly because of the crowded nature of jails. Then you would have thousands of people at risk. So we're working with the state on trying to see what we can do about reducing the jail numbers.”
In Louisiana, Mercedes Montagnes says, “on the pre-trial level we have people in jail for minor parole violations. They're at risk for staying in prison for months because the courts are closing, and possibly getting a life sentence for a possible parole infraction: They might die from COVID because we’re putting them in harm’s way.”
People in jails and prisons, Davidson said, “need to know what symptoms look like. They need to know what they can do to protect themselves, for example sanitation methods like handwashing and social distancing to the extent that that’s possible in facilities. They need to know what is available to them at the facility in terms of accessing medical care.” Prisons and jails should waive the co-pays they traditionally charge to detained people, he said. “We know for a fact that they function as a huge hurdle for folks seeking medical care.” Those co-pays might seem low to people who aren’t detained, Davidson said, “but even $5 seems much higher when you make a few cents an hour.”
Davidson said that anecdotally, the SPLC is hearing from people in jails, prison and immigration detention centers “that in many facilities, if not all, they’re not taking those additional precautions to make hand sanitizer and soap available. And it should be free. Very often, folks have to buy these things from the commissary. There’s price gouging and they’re paid very little money. There may be some facilities that have made changes but at many, if not most, currently, what we’re hearing is that detained individuals are still having to buy soap and hand sanitizer themselves.”
In the jail facility in New Orleans, says Colin Reingold of Orleans Public Defenders, they suspect their clients might not be getting "a lot explanation about how to really take care of themselves. We've tried to get funds to get antibacterial soap to our clients. The jail says they’re also giving adequate soap. But our clients are telling us they're being told it’s like the flu." For extremely vulnerable people —for instance those who are HIV-positive and have documented developmental disabilities—it's "particularly worrisome," Reingold says. "They need extra assistance to help themselves, and from what we’re hearing they’re not getting any of that."
It’s obvious that the spread of coronavirus in jails and prisons is already significantly underway. This week, a private prison in Pennsylvania operated by GEO Group announced that detained people and employees were exposed to COVID-19 by an employee, though GEO claims they remain asymptomatic. The federal Bureau of Prisons says that a staff member at a federal prison in Kentucky was exposed to coronavirus and advised to self-quarantine, though his wife, who also works at the prison, was not. A Department of Correction employee in New York recently died of the virus, though the DOC claims the person had “limited contact” with people in jail. On Wednesday morning, the DOC there announced a Rikers correctional officer also has the virus.
The controversy over how jails and prisons should handle coronavirus comes at a time when many advocacy organizations are already suing for better medical care for detained people. Since 2015, the Promise of Justice Initiative has been suing over what it calls “abysmal” healthcare for people at Angola.
“We see a really limited capacity among healthcare providers at Angola to meet the needs of its population,” Montagnes told VICE. “And now we’re entering one of the worst public health crises of all time, at a time when the system is already failing to meet the basic needs of the population.”
As for the letters that the Southern Poverty Law Center and other groups sent to the governors of Mississippi, Florida and Louisiana, Jared Davidson says: “We haven’t heard back.”
Correction: An earlier version of this story stated that Davidson coordinated the SPLC's letters in Florida, Mississippi and Louisiana; he coordinated only the Louisiana letter.
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