Following the guidance of the Centers for Disease Control and Prevention (CDC), many individuals and families throughout America recently began practicing “social distancing” measures in an effort to slow transmission of the novel virus COVID-19. Many workplaces adopted “work from home” policies, and most school, college, and university systems prioritized sending students away from campus for the remaining semester.
While these efforts to support families facing COVID-19 should be applauded, they fail to address the approximately two million people confined within the criminal justice system unable to adequately practice these measures. Workplace and community social distancing policies similarly fail to address the additional two million people working for the criminal justice system, who interact with both prison and non-prison populations regularly. As families within the general population brace for the peak of COVID-19, policymakers must include individuals and families within the criminal justice system in those preparedness efforts.
This piece argues that state systems should use their authority to prioritize the release of elderly people who are incarcerated and those living with chronic conditions. Furthermore, states should prioritize the release of alleged parole offenders with recent technical violations. This piece details the unique risks COVID-19 presents to these populations. Further, it explores the overall “graying” of American prison systems, demonstrating the stark rise in elderly incarcerated populations over the past decade. Lastly, this piece explains the risks in continuing to permit criminal justice staff, such as correctional officers and wards, to interact with elderly and immunocompromised individuals at this time.
Data from the CDC indicates that COVID-19’s doubling rate—the period of time it takes for the number of cases to increase by a factor of two—is six to seven days. Because COVID-19 infections grow exponentially, each day with new infections amplifies the initial number of cases, leading to substantial and immediate growth if left unabated. COVID-19 is particularly dangerous for individuals with the following conditions:
- Blood disorders
- Heart disease
- Lung disease
- Chronic kidney disease
- Chronic liver disease
- Compromised immune system
- Endocrine disorders
As the health care system becomes saturated with new cases—leading to an associated demand for a finite number of intensive care units—it will be increasingly difficult to track new transmission chains with continued lack of testing nationwide.
COVID-19 transmits easily between individuals, and it is difficult to prevent its spread among those within close contact. The best known practice for individuals in combatting the spread of COVID-19 is to practice social distancing in efforts to fully avoid transmission. Social distancing is difficult to implement in prisons. As incarcerated persons sleep, shower, and eat near one another in close quarters, social distancing is “literally impossible,” according to the Colorado branch of the American Civil Liberties Union. Because incarcerated individuals are unable to practice social distancing and have restricted access to sanitization, the infection rate can dramatically escalate compared to the general population, leaving incarcerated individuals, who are disproportionally likely to experience chronic health conditions, to suffer.
Data on the COVID-19 infection rate at Rikers Island illustrates the dangers of failing to release incarcerated persons and individuals with alleged recent technical offenses during parole. As of March 30, The Legal Aid Society in New York reported 167 cases of COVID-19 among Rikers Island’s 4,640 incarcerated individuals. The current 3.6% infection rate outpaces the infection rate in New York City (0.44%). While it is important to note that countries and states are varying in their testing policies globally, previous studies have demonstrated how prison conditions enhance the transmission of infectious diseases. Because prisons can amplify the transmission of infections, states should adopt proactive release policies at this time.
Accordingly, states should release not only incarcerated people who are elderly or chronically ill but also seek to release alleged parole offenders with recent technical violations. These offenders have not committed a new crime; rather, they generally are not in compliance with a supervision program, such as by missing a meeting with a parole officer, using alcohol, or failing a drug test. It is of the utmost importance that officials take immediate efforts to release people who are incarcerated at this time. If states refrain from taking measures to mitigate the spread of COVID-19 within prisons, the prison infection rate will likely increase, threatening both incarcerated persons and the general population.
I. Chronic Health Conditions in Prison
Prisons are closed environments that present a substantial threat for COVID-19 contraction. Generally, a disproportionate number of people who are incarcerated throughout the nation come from low socioeconomic populations which may be further linked with lack of access to comprehensive health care. Prior to incarceration, incarcerated persons may have been burdened in seeking health care or received inadequate health care treatment through homelessness, lack of medical insurance, mental illness, racial disparities, immigration background, or LGBT+ status. Poor prison conditions can amplify the spread of disease or contribute to worsening health status through overcrowding, poor ventilation, substandard nutrition, or inadequate medical care. In effect, incarcerated people are likely to enter into the prison system with or heightened risk of developing a chronic health condition in substandard care conditions. Because COVID-19 is especially dangerous for those with comorbidities, incarcerated people who contract the virus face heightened risks for complications.
II. “Graying” of American Prisons
COVID-19 also poses a significant threat to older individuals, who comprise a substantial portion of the U.S. prison system. Older incarcerated individuals make up the “fastest-growing population” within both the state and federal prison systems. The U.S. Bureau of Justice Statistics indicates that the number of people age fifty-five or older incarcerated in state and federal prisons nearly quadrupled between 1995 and 2010. According to a recent Urban Institute report, “the proportion of prisoners age fifty or older has increased from approximately 12 percent of the total prison population in 1994 to 17 percent in 2011.” In 1994, there were 9,000 incarcerated persons age fifty or older. In 2011, there were nearly 30,000 incarcerated persons age fifty or older, amounting to a 330% increase. Through the use of mandatory sentences and three-strike laws, older prison populations have swelled as sentences increased with little opportunity for parole nationwide. With increased elderly representation, COVID-19 threatens significant transmission and mortality risks within the incarcerated population.
III. Interactions with Officials in the Criminal Justice System
CDC guidance highlights the challenges of implementing social distancing practices within prisons, as incarcerated persons must monitor numerous interactions with others throughout the criminal justice system. Incarcerated persons are not only concerned with the potential transmission between others who are incarcerated but also from officials who interact with general population. COVID-19 may be introduced into prisons through new transmissions from official staff, legal representatives, or the transfer of incarcerated persons between facilities. Relatedly, incarcerated individuals may be called to mandated court appearances, or to outside medical care, depending on worsening health conditions. Because transmission is possible among asymptomatic and pre-symptomatic carriers, it is unclear if transferred individuals will be exposed to the virus among these different points of contact. Additionally, throughout these transfers, it will be difficult to maintain the recommended six feet of separation consistently. Because there is currently no known cure or vaccine for COVID-19, it is best to implement cautious practices when considering the likelihood for transmission.
Restrictions on sanitization practices and limited access to cleaning supplies further compound risks for transmission throughout these interactions. Because many facilities restrict access to alcohol-based sanitizer, opportunities for proper sanitization are limited only to hand-washing, which may be further limited by security concerns. These risks are cyclical: as prisoners are subject to sanitization and hand-washing restrictions while closely confined throughout essential life activities, criminal justice employees would be similarly susceptible for transmission. Consequently, limiting outbreaks in prison not only benefits the health of vulnerable incarcerated persons but also the general population. Decreasing risks for transmission among incarcerated persons, recent alleged parole offenders, and criminal justice employees minimizes the risk of transmission to the general public.
State governors should prioritize commuting sentences and granting release for chronically ill and elderly incarcerated people. By commuting sentences and granting releases for those with compromised immune systems, permanent disabilities, or terminally ill conditions, state prison systems can reduce the risk of COVID-19 outbreaks within prison systems through reducing the concentration of incarcerated individuals and limiting transmissions among the vulnerable with the potential for the most serious complications. Furthermore, state systems should prioritize measures to reduce the introduction of new incarcerated people at this time, namely through the release of alleged parole offenders with recent technical violations and decreasing prosecutions for minor offenses.
While halting visits from the public and adopting screening measures for prison correctional staff may help prevent the introduction of the virus from outsiders, COVID-19 may be introduced into the prison system by the introduction of a newly incarcerated individual or opportunistic transfers. Local mayors, judicial officials, district attorneys, and sheriffs should also assess respective powers within state governments and communicate with appropriate policymakers to provide recommendations for release. Such measures would match additional ongoing federal efforts to promote releases during the pandemic.
Recidivism risks are low with chronically ill and elderly populations. By intentionally reducing risks of COVID-19 exposure to prison populations, communities outside of prison populations also gain substantial benefits. These measures help to protect vulnerable individuals during the pandemic while simultaneously helping to prevent the spread of COVID-19 nationwide.
Hailey Cleek: JD/MA Bioethics, Wake Forest University School of Law. Thank you to Professor Christine Coughlin, Natasha Geiling, and Hanaa Khan for comments and suggestions.
Coronavirus Disease 2019 (COVID-19), Ctrs. Disease Control & Prevention, https://www.cdc.gov/coronavirus/2019-ncov/php/risk-assessment.html (last updated Mar. 22, 2020).
See, e.g., Elizabeth Redden, As College Students Leave Campuses Over COVID-19, New Considerations Arise, PBS (Mar. 11, 2020), https://www.pbs.org/newshour/education/as-college-students-leave-campuses-over-covid-19-new-considerations-arise; Lu-Hai Liang, How Covid-19 Led to a Nationwide Work-From-Home Experiment, BBC (Mar. 8, 2020), https://www.bbc.com/worklife/article/20200309-coronavirus-covid-19-advice-chinas-work-at-home-experiment;but see Tara Law, Americans Are Being Encouraged to Work From Home During the Coronavirus Outbreak. For Millions, That’s Impossible, Time (Mar. 9, 2020), https://time.com/5797382/coronavirus-remote-work-home/.
Wendy Sawyer & Peter Wagner, Mass Incarceration: The Whole Pie 2020, Prison Pol’y Initiative (Mar. 24, 2020), https://www.prisonpolicy.org/reports/pie2019.html.
For example, corrections employees in Alabama, Georgia, and Pennsylvania have already tested positive for COVID-19. See Melissa Brown, Alabama Department of Corrections Employee Tests Positive for Coronavirus, Montgomery Advertiser (Mar. 19, 2020), https://www.montgomeryadvertiser.com/story/news/2020/03/19/alabama-prisons-employee-positive-covid-19-coronavirus-infection/2879847001/; Christian Boone, DOC Employee Contracts COVID-19 Amid Calls for Prison Depopulation, Atlanta Journal-Constitution (Mar. 18, 2020), https://www.ajc.com/news/crime–law/employee-inside-prison-tests-positive-for-covid/a40bWvX7LFFERMjoeLggyH/; Allie Miller, Delaware County Prison Employee Tests Positive for Coronavirus, PhillyVoice (Mar. 14, 20120), https://www.phillyvoice.com/delaware-county-prison-employee-coronavirus-cases-pennysylvania/.
Zhanwei Du et al., Risk for Transportation of 2019 Novel Coronavirus Disease from Wuham to Other Cities in China, 26 Emerging Infectious Diseases (2020) (e-publication), https://wwwnc.cdc.gov/eid/article/26/5/20-0146_article.
Fei Zhou et al., Clinical course and risk factors for mortality of adult inpatients with COVID-19 in Wuhan, China: a retrospective cohort study, The Lancet (Mar. 12, 2020), https://www.thelancet.com/journals/lancet/article/PIIS0140-6736(20)30566-3/fulltext; Lei Fang, George Karakiulakis, & Michael Roth, Are patients with hypertension and diabetes mellitus at increased risk for COVID-19 infection?, The Lancet (Mar. 11, 2020), https://www.thelancet.com/journals/lanres/article/PIIS2213-2600(20)30116-8/fulltext; FAQs: What You Should Know About COVID-19 and Chronic Medical Conditions, Cleveland Clinic (Mar. 17, 2010), https://health.clevelandclinic.org/faqs-what-you-should-know-about-covid-19-and-chronic-medical-conditions/.
See Stephen Engelberg, The Coronavirus Testing Paradox, ProPublica (Mar. 23, 2020), https://www.propublica.org/article/covid-19-coronavirus-testing-paradox-united-states (describing frustrations in tracking transmissions without substantial testing); Roy M. Anderson et al., How will country-based mitigation measures influence the course of the COVID-19 epidemic?, The Lancet (Mar. 21, 2020), https://www.thelancet.com/journals/lancet/article/PIIS0140-6736(20)30567-5/fulltext (describing how presymptomatic infectiousness lends to difficulty in tracing transmission between individuals); Siobhan Roberts, You Can Help Break the Chain of Transmission, N.Y. Times (Mar. 19, 2020), https://www.nytimes.com/2020/03/19/health/coronavirus-distancing-transmission.html (last updated Mar. 23, 2020) (illustrating the concept of chain transmission).
How Coronavirus Spreads, Ctrs. Disease Control & Prevention, https://www.cdc.gov/coronavirus/2019-ncov/prevent-getting-sick/how-covid-spreads.html?CDC_AA_refVal=https%3A%2F%2Fwww.cdc.gov%2Fcoronavirus%2F2019-ncov%2Fprepare%2Ftransmission.html(last updated Mar. 4, 2020).
Francis Collins, To Beat Covid-19, Social Distancing is a Must, NIH Director’s Blog (Mar. 2020), https://directorsblog.nih.gov/2020/03/19/to-beat-covid-19-social-distancing-is-a-must/.
Governor and State Officials Urged to Reduce Jail and Prison Population During COVID-19 Pandemic, Am. Civil Liberties Union Colorado (Mar. 17, 2020), https://aclu-co.org/governor-and-state-officials-urged-to-reduce-jail-and-prison-population-during-covid-19-pandemic/.
Covid-19 Infection Tracking in NYC Jails, The Legal Aid Society (Mar. 30, 2020), https://legalaidnyc.org/covid-19-infection-tracking-in-nyc-jails/.
See generally Andrew P. Wilper et al., The Health and Health Care of US Prisoners: Results of a Nationwide Survey, 99 Am. J. Public Health 666, 669–71 (2009) (discussing possible “amplifiers” for transmission within prisons); Grace E. Macalino, Prevelance and Incidence of HIV, Hepatitis B Virus, and Hepatitis C Virus Infections Among Males in Rhode Island Prisons, 94 Am. J. Public Health 1218 (2004) (observing high intraprison incidence of hepatitis B virus). For additional resources, see Mass Incarceration Supplement 2020, Am. Pub. Health Ass’n (Jan. 23, 2020), https://www.apha.org/news-and-media/news-releases/ajph-news-releases/2020/mass-incarceration-supplement.
At this time of writing, Governor Andrew Cuomo of New York has ordered the release of 1,100 people from the state’s jails and prisons. Advocates continue to plead for additional releases, citing the difficulties of social distancing and lack of sanitization access. See, e.g., Mary Bassett, Eric Gonzalex, & Darren Walker, Andrew Cuomo, Stop a Coronavirus Disaster: Release People from Prison, N.Y. Times (Mar. 30, 2020), https://www.nytimes.com/2020/03/30/opinion/nyc-prison-release-covid.html.
Vera Inst. Justice, Guidance for Preventative and Responsive Measures to Coronavirus for Parole, Probation, and Clemency 2 (2020), https://www.vera.org/downloads/publications/coronavirus-guidance-parole-probation-clemency.pdf.
See Michael Massoglia & William Alex Pridemore, Incarceration and Health, 41 Annual Rev. Sociology 291, 291–94 (2015) https://www.ncbi.nlm.nih.gov/pmc/articles/PMC6124689/.
See generally Zulficar Gregory Restum, Public Health Implications of Substandard Correctional Health Care, 95 Am. J. Public Health 1689 (2005), https://www.ncbi.nlm.nih.gov/pmc/articles/PMC1449420/ (detailing how poor prison conditions heighten the risks for communicable diseases such as tuberculosis).
World Health Org., Tuberculosis in Prisons, https://www.who.int/tb/areas-of-work/population-groups/prisons-facts/en/ (last visited Mar. 24, 2020).
Jeremy Luallen & Christopher Cutler, The Growth of Older Inmate Population: How Population Aging Explains Rising Age at Admission, 72 J. Gerontology 888, 888 (2015), https://watermark.silverchair.com/gbv069.pdf?token=AQECAHi208BE49Ooan9kkhW_Ercy7Dm3ZL_9Cf3qfKAc485ysgAAAnYwggJyBgkqhkiG9w0BBwagggJjMIICXwIBADCCAlgGCSqGSIb3DQEHATAeBglghkgBZQMEAS4wEQQM84v2-DDnGo9sjh1tAgEQgIICKRMTNDnCswygc0eCiIqgEIXuh9Yt5oY1HLSJ-7JqNDKYEOzycQtMXUaYKRpW2jPvEIubcobO8i2-04qUOI1-R8jnSH80xCUhuViZCemCj4NGQ8qf__bSvmg7CFfsSKC0qFuedDDKD_Oj61KbmQo_OY1ufXmVadtEp7MjZWHXUi2t5t5xMlUM5iF05SSrUElEwDf5g_ckwbPtzVyDH9gb_2yjjwsxGEz9KBOcPD30B4HK3NcpkRmOLa5bikGSXT2z8vHIrK7Qk8980ZjkA79leDCf_x-5OjGgBq6dInJDdCGeEYQQLnnLWUbM3EDMxCzQCTDsBm1-Ry9wPLF8Eu_nIdTqARzNKJ1vC_FVOIZbR0HuIskUh3FVxEV-50VJffENPWaYU6Skiln_JMeVug3LioNKbWhiKKDWRFl0rYucGvx6kYt3v-q6-jDo3z6ZHZwr7g7FPJmYnxK7iAkQOG3kTCtCin42I8GfZXqhk2HqXceDstjyy92TMd4Bglkq494kXKqnUWoUU4wrZYxhjGx7Lexlsd50Jgr1ddyBfU5bydG3y5igqIiqXLz3hU8Eo5e5AcJNIIkbKFLE1npZTqn7i8NRRuGG0F9FOL-tO8Sc1QTmL47TX7wrLWWsvNhkJRVR0beB8x_s6PNjtdW9-nzWdoQ1vIKy5ANnO9TulGl44AiqmzG7r30axuBlbeI_uCHl9minYlUNeUbQCBaxAESzTIuzAl5SjLqP1ss.
Human Rights Watch, Old Behind Bars (2012), https://www.hrw.org/report/2012/01/27/old-behind-bars/aging-prison-population-united-states; see generally Thomas P. Bonzcar et al., Bureau Just. Statistics, National Corrections Reporting Program: Most Serious Offense of State Prisoners, By Offense, Admission Type, Age, Sex, Race, and Hispanic Origin (May 5, 2011), https://www.bjs.gov/index.cfm?ty=pbdetail&iid=2065 (compiling Bureau of Justice Statistics Data from 1993–2009).
KiDeuk Kim & Bryce Peterson, Urban Inst., Aging Behind Bars 3 (2014), https://www.urban.org/sites/default/files/publication/33801/413222-Aging-Behind-Bars-Trends-and-Implications-of-Graying-Prisoners-in-the-Federal-Prison-System.PDF.
Ctrs. Disease Control & Prevention, Interim Guidance on Management of Coronavirus Disease 2019 (COVID-19) in Correctional and Detention Facilities (Mar. 23, 2020), https://www.cdc.gov/coronavirus/2019-ncov/community/correction-detention/guidance-correctional-detention.html.
Id.; see, e.g., Keri Blakinger & Beth Scwartzapfel, When Purell is Contraband, How Do You Contain Coronavirus?, Marshall Project (Mar. 6, 2020), https://www.themarshallproject.org/2020/03/06/when-purell-is-contraband-how-do-you-contain-coronavirus (detailing examples of state restrictions).
Responses to COVID-19 Pandemic, Prison Pol’y Initiative, https://www.prisonpolicy.org/virus/virusresponse.html(last updated Mar. 30, 2020) (providing examples of sheriffs advocating for release for those with 30 days or fewer remaining on their sentences, district attorneys releasing individuals held pretrial, district court judges calling for immediate release of those awaiting trial for misdemeanors, and parole boards granting early releases).
Attorney General William Barr recently announced efforts to promote releases with the U.S. Bureau of Prisons. Philip Ewing, Barr: Federal Prisons Mustn’t Become ‘Petri Dishes’ For Coronavirus, NPR (Mar. 26, 2020), https://www.npr.org/sections/coronavirus-live-updates/2020/03/26/822016191/barr-federal-prisons-mustnt-become-petri-dishes-for-coronavirus?utm_term=nprnews&utm_medium=social&utm_source=twitter.com&utm_campaign=npr. Federal detention centers share many difficulties in social distancing and restrict sanitization but are outside of the scope of this article. Accordingly, federal systems should release both at-risk individuals, elderly, and individuals with recent technical violations on parole. Similarly, federal officers should promote efforts to minimize certain prosecutions at this time. See, e.g., Alejandro Lazo, Protests, Hunger Strikes Erupt Over Coronavirus in Immigration Detention, Wall St. J. (Mar. 27, 2020), https://www.wsj.com/articles/protests-hunger-strikes-erupt-over-coronavirus-in-immigration-detention-11585320903.
Recommended Citation: Hailey Cleek, Pandemic Behind Bars: Prioritizing the Release of Elderly, Chronically Ill, and Recent Alleged Parole Offenders with Technical Violations in Anticipation of COVID-19’s Peak, Calif. L. Rev. Online (Apr. 2020), https://www.californialawreview.org/pandemic-behind-bars.