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Coronavirus In Jails And Prisons

A new watchdog report finds ‘inadequate adherence to basic safety protocols’ during COVID-19 outbreaks in California prisons; advocates call on Gov. Cuomo to release incarcerated people and enhance medical oversight; Abbe Lowell says the First Step Act needs a Second Step Act.

Photo illustration by Elizabeth Brown.

Weeks before the first reported cases of COVID-19 in prisons and jails, correctional health care experts warned that all the worst aspects of the U.S. criminal justice system—overcrowded, aging facilities lacking sanitary conditions and where medical care is, at best, sparse; too many older prisoners with underlying illnesses; regular flow of staff, guards, healthcare workers in and out of facilities—would leave detention facilities, and their surrounding communities, vulnerable to outbreaks. Despite those early warnings, even jails and prisons that believed they were well-prepared have seen a rapid spread of the virus. Over the past several months, The Appeal has been examining the coronavirus crisis unfolding in U.S. prisons and jails. Read recent posts.

In June, amid a precipitous rise in cases of COVID-19 in its prisons, the California Department of Corrections and Rehabilitation (CDCR) scaled back rules on face coverings, allowing staff and incarcerated people to remove department-issued masks if they were at least six feet away from another person. A new report by the Office of the Inspector General, which monitors the state prison system, argues that this action was misguided and potentially dangerous: “[T]he department’s relaxed requirements appeared to unnecessarily increase the risk of COVID-19’s spread among the staff and incarcerated population.”

The report, released today, is the second in a series of reviews by the OIG, examining CDCR’s response to COVID-19. California state Assembly Speaker Anthony Rendon requested the reports in April. The first report looked into the prison system’s COVID-19 screening practices.

The OIG found that although CDCR purchased and distributed enough protective face masks for staff and prisoners, and mandated their use, supervisors rarely enforced those rules. Investigators who visited prisons routinely saw people not wearing masks, or wearing them incorrectly. 

During a visit to North Kern State Prison, which was experiencing an active outbreak and had recently announced the death of an employee, “we still observed indifference to the department’s directives,” the report says. “At the prison, with the staff member’s tragic death as a backdrop to our inspection, we expected departmental staff to be vigilant about taking all appropriate precautions to prevent the spread of COVID-19. Instead, we saw the opposite: a significant number of staff members seemed cavalier about the threat of the virus and displayed that attitude by failing to adhere to the face covering policy.”

The OIG now urges CDCR management to implement clear guidelines and impose disciplinary action when the guidelines aren’t followed.

In a response that’s included with the report, CDCR Secretary Kathleen Allison writes that the department “recognizes its responsibility to clearly communicate the importance of adhering to physical distancing and face covering protocol” and “will continue its effort to consistently enforce those policies and procedures.”

In an op-ed for Law360, veteran criminal-defense attorney Abbe Lowell argues that the First Step Act, a law enacted in 2018 to fix federal sentencing laws, needs a “Second Step Act.” The First Step is not being applied equitably, he argues, citing the case of a federal prisoner—the first to die of COVID-19—who received a 27-year sentence for a nonviolent drug charge because he committed his crime within 1,000 feet of a community college.

“The person died a month after a judge denied his First Step application, citing his criminal history where many others released in this same period also had prior offenses,” Lowell writes.

Lowell argues that despite the new law, too many judges continue to treat sentencing guidelines as mandates when they should instead be exploring alternatives to incarceration. The cost of imprisoning someone—upwards of $33,000 a year, depending on the state—could be spent on rehabilitative programs. 

“Government agencies with penal responsibilities would work with legislatures to reformulate budgets away from bars and guards,” Lowell writes, “and toward employment, training or retraining, and health and psychological programs for an inmate’s future.”

➤ The San Francisco Chronicle’s Jason Fagone and Megan Cassidy explore the dilemma facing California Gov. Gavin Newsom after an appeals court issued an order to cut San Quentin’s prison population by half. The ruling doesn’t require Newsom to release anyone—he could instead choose to transfer 1,400 people, roughly half of the prison’s current population, to less-crowded state facilities. He could also appeal the ruling. “Does he fight the ruling,” Fagone and Cassidy write, “or does he own up to his administration’s mistakes and take the medicine?”

➤ The Montana Department of Corrections continues to report new cases of coronavirus in its largest prison. A week ago, 36 prisoners and 23 employees at the Montana State Prison in Deer Lodge had tested positive for the virus. As of Monday, infections had spiked to 203 prisoners and 75 staff members. The state as a whole has seen the daily number of new infections triple over the last month. 

➤ With COVID-19 infections climbing in New York prisons, advocates for incarcerated people are urging Gov. Andrew Cuomo to approve release requests from elderly and medically fragile people. At the same time, state legislators are asking why Cuomo hasn’t signed a bill, passed by both chambers of the legislature in July, that would give the New York Department of Health the ability to oversee care provided in prison infirmaries. The Correctional Association of New York, one of the organizations pushing for the new law, surveyed state prisoners last year and reported that nearly three-quarters of respondents had been denied medical care.

➤ In Florida, the coronavirus has killed more than 150 incarcerated people. An editorial in Sunday’s South Florida Sun-Sentinel accuses state corrections officials of treating people in their care with “lethal indifference.” “Some states are trying to reduce their prison populations on account of COVID-19, but not Florida,” the editorial argues. “Only the governor can initiate clemency … but [Gov. Ron] DeSantis appears indifferent to the unique threat that the coronavirus has created in prisons.”