Hardwired Against Change: Race, Incarceration, and COVID-19

Prisons, jails, and detention centers are closed, secret spaces. In the United States, these institutions are responsible for the lives, health, and safety of 2.3 million people, 24 hours a day, seven days a week. Even in the middle of a public health crisis, carceral facilities have remained deliberately invisible to the public gaze. Improving the transparency of these spaces is more important now than ever, given the disproportionate incarceration of racial minorities, the higher COVID-19 transmission rates inside these institutions, and the higher vulnerability of racial minorities to coronavirus infection and death due to structural inequities in health care access and services. If anything, examining incarceration through the lens of the pandemic helps us better understand why piecemeal reform is unlikely to be successful in addressing inhumane conditions.

Immutable Institutions

Prisons, jails, and detention centers are decentralized, government-run congregate spaces, similar to nursing homes and schools. But the law treats these carceral spaces differently. Unlike schools, wardens are not required to publish summary data about their facilities, such as population demographics or the services provided or used by incarcerated people. Unlike nursing homes, prisons and jails are not subject to statutory licensing requirements. Incarcerated people are also not covered by generally applicable labor and workplace safety laws. Carceral spaces, except in a few select states, operate without independent oversight or community involvement. Within these closed spaces, government power is at its apex with none of the traditional democratic limits to check local, state and federal authority over individual people.

This lack of transparency matters. While incarcerated, our prisons and jails limit people’s access to basic necessities like medical and mental health services and contact with their families. People incarcerated are exposed to mental and physical trauma, overcrowded facilities, punitive discipline – including solitary confinement for days, months, and even years – and forced labor, either in maintaining their prison or for state and private profit. Incarcerated people can be traded among institutions, shipped at a moment’s notice to another prison, perhaps in a different state. People emerging from these carceral institutions face life-long collateral consequences, including exclusion from social welfare, housing and employment discrimination, extensive parole conditions, in addition to the trauma they may have experienced while “inside.” As such, prisons are “part of a symbiotic structure that reproduces disadvantage for certain groups within society.” Transparency is a critical (but not sufficient) element of broader accountability for these institutions.

None of this is new. Prisons, jails, and detention centers are rigid institutions designed and constructed to control and contain people. Both law and policy have deliberately insulated these institutions from the public view, further isolating the people confined within them.

Federal courts defer extensively to the decisions of prison and jail administrators, even where constitutional rights are at stake. This deference is rooted in U.S. Supreme Court opinions like Jones v. North Carolina Prisoners’ Union, which provided a doctrinal foundation for judicial deference while simultaneously erasing critical racial context that helps explain the outcome of the case. Through federal law and judicial doctrine, federal courts have been steadily divested of their authority to perform their judicial oversight function mandated under the U.S. Constitution. The Prison Litigation Reform Act of 1996 created enormous barriers for incarcerated people to seek damages for harms endured while confined under government authority. Federal courts have also erected their own barriers to rigorously examining claims of prison and jail malfeasance, including qualified immunity and heightened standards for correctional official liability.

State law is no different when it comes to making prisons – and their involuntary residents – invisible. In Louisiana, for example, someone incarcerated with a final conviction is not considered an eligible “person” for filing a public records act request. State election laws for absentee ballots and registration periods create barriers to voting for those incarcerated in pre-trial detention, even though felony disenfranchisement laws only apply after conviction. Only two states allow people to vote while incarcerated for a felony conviction. More broadly, only a few states have robust mandatory state standards governing carceral spaces and even fewer states enforce them.

Enter COVID-19

What is new, however, is COVID-19. When everything in our world has changed – from how Americans eat, work, connect, and study – only prisons, jails, and detention centers have remained isolated from public health mitigation strategies. As of August 11, 2020, almost 100,000 people in prisons (not including jails and detention centers) have been infected with COVID-19 and almost 1,000 of them have died. This persistent insulation of carceral spaces, even in the midst of a global pandemic, demonstrates how immutable these institutions actually are and forces us to think creatively about how to change them.

Outside of carceral institutions, COVID-19 has impacted the most basic of interactions. Public health officials encourage Americans to stay physically separate from others and avoid social gatherings. Businesses, whenever possible, have gone virtual. Americans have devised elaborate ways to protect us from each other, including masking our teachers and children. Even dating and sex are different during these COVID-19 times. Sociologists and historians will be writing about the profound impact of the pandemic on American lives for decades to come.

Strategies for mitigating, containing, and even “crushing” the COVID-19 curve are being encouraged, and even mandated in some localities, everywhere except for prisons, jails, and detention centers. Physical distancing of six feet is – in most cases – impossible without actively depopulating jails and prisons. Distribution of cloth masks is limited and priority for masks is given to symptomatic incarcerated patients, despite overwhelming evidence of asymptomatic transmission. Free people are encouraged to get tested in pop-up drive throughs if exposed, yet testing within carceral facilities is not widely available, much less on demand.

COVID-19 – instead of prompting depopulation, improved sanitation and hygiene, and access to medical care – has instead been used to justify lockdowns of entire units and facilities. Some prisons and jails have refused to provide masks to incarcerated people. Education and programs, including substance abuse and financial literacy, have been indefinitely canceled for incarcerated people, removing already limited tools to help mitigate the trauma of incarceration. Rather than proactively evacuating symptomatic patients to hospitals, prisons and jails have re-opened dilapidated buildings for understaffed and under-resourced medical wards inside facilities. Instead of creating medical isolation units for people testing positive for the coronavirus, incarcerated people are now more at risk for placement in solitary confinement, a punitive housing assignment where incarcerated people are denied access to outdoors, meaningful human contact and locked inside six-by-eight foot cells for weeks at a time.

Internal policies on treatment, isolation, and medical evacuation are not considered public information and usually only obtainable through litigation. Despite announcements of issuing masks facility-wide, people inside claim they haven’t received them. And when incarcerated people attempt to implement basic mitigation tools (staying distant, covering their noses/mouths), they are punished. Appellate courts – employing exaggerated deference – have rarely interceded to protect the health of incarcerated people. The list of what we don’t know about the impact of COVID-19 within America’s sprawling carceral state is long, but what we do know is horrifying.

Prisons and jails have also failed to significantly reduce their populations to manage this crisis and enable social distancing. Some local jails worked quickly to release people awaiting trial, particularly those people without prior criminal involvement or accused of non-violent crimes. Those initial efforts now appear to be in reverse, with 71% of jails nationwide showing increases in population since May 1, 2020. Prisons and detention centers have not robustly deployed their authority to release people and have only recently achieved 13% less capacity nationwide. A recent study of COVID-19-related jail releases and crime rates counters fears that depopulation endangers public safety. In that study of 29 cities, the ACLU found that “more decarceration was not associated with more crime.” Whether through clemency, accelerated parole, medical furlough, or compassionate release, state governors have refused to implement in prisons the physical distancing many of them require in every other area under their authority. The lack of significant releases may ultimately make all Americans less safe and secure.

This resistance to pandemic-induced change in carceral spaces is even more significant because prisons, jails, and detention centers are “petri dishes” for infectious diseases. A recent study published in the Journal of the American Medical Association found that incarcerated people are five and a half times more likely to be infected with the coronavirus, and three times more likely to die from COVID-19 than someone who is not incarcerated. Every day, we learn more about how the virus is transmitted, but infectious disease experts agree that infection is much more likely in crowded interior environments due to poor air circulation and an inability to maintain physical distance. Most detention facilities, due to their design and lack of ventilation, risk becoming the site of a coronavirus outbreak. Incarcerated people share open toilets, sinks, and shower facilities. The average size of a cell is roughly 48 square feet (6’ x 8’) for two people, which is less than the 6-foot social distance recommended for the general public. Centralized kitchens (including food preparation, and utensil storage), usually staffed by (unpaid) incarcerated people, prepare and cook meals for the entire facility.   Other centralized services (medical, commissary, cafeterias) can only be accessed with a staff escort.  Though incarcerated people may live in separate units, tiers, or dorms, staff may become super-spreaders within the facility, carrying the virus from one unit to another.

The pandemic has changed very little about how prisons, jails, and detention centers operate. These institutions have become less, rather than more, transparent. In August 2020, five months after the pandemic shut down the U.S. economy, most local jails still do not publish information on coronavirus testing, infections, or deaths in their facilities. To the extent that state prisons publish any information on COVID-19 in their facilities, that data is limited and often not broken down by race or age, unlike COVID-19 data analysis in the free world.

Prison, jail, and detention center data, to the extent it is collected, is then excluded from broader COVID-19 data, analysis, and forecasting.  In a telling example, Louisiana’s Department of Health fails to include prisons, jails, and detention centers in its list of “congregate settings outbreaks” despite a 42% positivity rate for tests administered by the Department of Public Safety and Corrections. Prisons are not “contained sites” and coronavirus infections in carceral institutions threatens the health and security of people inside and outside these spaces.

People in prisons, jails and detentions centers are not a static population. States must release people who have completed their judicially ordered sentence. “Jail churn” – the revolving door of people awaiting trial processed in and out of jails – affects 4.9 million people each year. These people return to their home communities, often racially segregated, infecting their family members and friends. A recent study found that almost 16 percent of COVID-19 infections in Chicago early in the pandemic could be linked to people cycling through Cook County Jail. Admissions and releases – without accompanying safety measures inside prisons, jails, and detention centers – are spreading COVID-19 – hitting communities of color particularly hard.

Additional risks to broader public health emerge from staff and decreased hospital capacity. Staff enter and exit these facilities every day, potentially transmitting COVID-19 to their family and community. Prisons, jails, and detention centers often lack robust medical equipment, like ventilators, or sufficient medical personnel. A COVID-19 cluster at one prison may quickly overwhelm local hospital capacity, particularly when the prison is located in a rural area. Even when a local prison focuses their resources on medically treating COVID-19 symptomatic patients, other serious medical needs of incarcerated people may spillover to external hospitals.

Disproportionate Impact on Black and Brown People

This structural insulation – and the accompanying failure to meaningfully adapt and respond to COVID-19 in prisons, jails, and detention centers – disproportionately harms Black and Brown people. First, racial minorities are disproportionately incarcerated compared to white people. The term “hyperincarceration” focuses our attention on the enhanced probability that Black men, and increasingly women, living in poverty from urban areas are more likely to be incarcerated, even within our uniquely American craze for mass incarceration. Local, state and federal government “hyperincarcerate” through the types of behavior criminalized, over-policing of specific communities, inadequate and unequal funding for public defenders, and user-pay-based criminal legal systems, ensuring a steady stream of Black and Brown people into our nation’s prisons and jails. Hyperincarceration is not a new phenomenon, but rather is a typical feature of criminal legal systems designed to enforce societal control.

In addition, public health officials have noted that certain categories of people, including the those with comorbidities such as hypertension and diabetes and the elderly, are more vulnerable to COVID-19 complications, including death. Black and Indigenous populations, and People of Color more generally, are likely to be disproportionately impacted by COVID-19 because they are more likely than non-Hispanic white people to have been diagnosed with specific underlying health conditions (e.g., diabetes, hypertension, obesity, etc.). The prevalence of comorbidities in communities of color is a direct result of historical and continuing unequal access to health care, housing, and credit that combine to situate communities of color near environmental hazards, among other structural factors.

Our prisons also increasingly hold elderly populations due in part to imposing longer sentences. Our sentencing and incarceration practices, including mandatory sentencing for people with prior criminal histories and minimal releases through clemency, pardons, parole and compassionate furloughs, have resulted in a concentration of medically vulnerable people – who are disproportionately racial minorities – confined in infectious prisons, jails, and detention centers across the United States.

Challenging Carceral Secrecy

The occupants of prisons and jails don’t elicit the same political sympathy that we extend to other people in congregate spaces, such as schools, military bases, or nursing homes. The “othering” of incarcerated people, in part through racist tropes like that of the superpredator,” means people in jails and prisons are both less protected and more vulnerable to harm.

Given the unique risks of exposure, infection, and death in prisons, jails and detention centers, challenging carceral secrecy is even more important than ever in the midst of the ongoing COVID-19 pandemic. But the pandemic also demonstrates how insulated these institutions are from desperately needed change. Traditional democratic tools for enhancing oversight, already limited in the carceral context, have failed to keep up with this fast-moving and continuing pandemic. To make these insulated institutions more transparent, and ultimately fairer, for all communities, the first step is to dismantle the structural walls that erase incarcerated people from the landscape.

Image: An aerial view San Quentin State Prison on July 08, 2020 in San Quentin, California. Over 1,400 inmates and staff at San Quentin State Prison have become infected with coronavirus COVID-19 after inmates from a Chino, California prison. Six inmates have died from the virus. An emergency care facility was erected on the baseball field to treat inmates suffering from one the largest outbreaks of COVID-19 in the nation. (Photo by Justin Sullivan/Getty Images).

 

About the Author(s)

Andrea Armstrong

Andrea Armstrong is the Law Visiting Committee Distinguished Professor of Law at Loyola University of New Orleans' College of Law.