History Teaches Us That When Viruses Come to Prisons, Punishment Is Not the Answer

This piece is a commentary, part of The Appeal’s collection of opinion and analysis.

In recent days and weeks, advocates have demanded that jails, prisons, and immigration detention facilities develop plans to prevent or mitigate the risk of COVID-19 spreading there. Noting that jails and prisons are an ideal environment for disease proliferation, packed with individuals who are acutely vulnerable to the virus, many have called for decarceration and a moratorium on new arrests.

However, as reports of individual cases of infected staff and incarcerated people emerge across the country, prison administrators will inevitably be forced to reckon with a new set of questions: When it’s too late to prevent an outbreak, how should they respond?  

Recent history warns against the use of punishment. During a number of epidemics in the past, jails, prisons, and detention facilities have responded using various forms of isolation—lockdown, quarantine, or individual segregation—and caused needless suffering. These responses also increased the spread of the virus both inside and outside prison walls because people feared reporting their symptoms. 

In the 1980s, prisons and jails developed policies to automatically segregate people with HIV or AIDS from the general population and often place them in solitary confinement. According to Human Rights Watch, by 1985, 46 of 51 prison systems had official mandatory segregation policies in place, not only subjecting incarcerated people living with HIV or AIDS to discrimination and stigma, but also often restricting their access to programming that can be used to earn credits for an earlier release date from prison. In 2013, South Carolina’s prison system became the last to drop its HIV segregation policy.

The policies were, at best, lazy and unscientific attempts to stop the spread of the virus; in practice, they created a climate of stigma, discrimination, and misinformation—without protecting anyone.  

Prison officials continue to use solitary confinement in place of medical treatment for other conditions, including tuberculosis, mumps, and an ongoing outbreak of Legionnaires’ disease at a federal prison in Florida. 

Most troublingly, given the spread of COVID-19, prison administrators have been especially eager to use punitive measures in response to influenza outbreaks.

During the 2009 H1N1 influenza pandemic, several facilities in California were placed on widespread lockdown after incarcerated people inside exhibited signs of possible infection. At San Quentin State Prison, 35 incarcerated people showed symptoms, but more than 2,000 were then confined indefinitely to their cells. After five cases were identified at Men’s Central Jail in Orange County, more than 1,200 people were confined in their cells while the prison continued to book new people—and immediately put them on lockdown. 

This deviated from the guidance issued by the Centers for Disease Control and Prevention at the time, which recommended designating an area of the facility “specifically for sick persons” and certain staff to care for only them. While it further recommended separating incarcerated people showing influenza-like symptoms in their cell “when possible,” the guidance made no mention of placing on isolation the thousands of others displaying no symptoms. 

Such punitive measures are unjust and inhumane, and also, from an epidemiological perspective, highly dangerous. Last month in The Appeal, Juan Moreno Haines described a prison response to influenza that makes life so unbearable for sick individuals that it discourages reporting symptoms and seeking treatment.

According to Haines, at San Quentin, incarcerated people running a high fever are put on “medical isolation,” which means they are sent to a cell originally designated to hold incarcerated individuals in solitary confinement pending a disciplinary hearing. There, they are monitored not by nurses or medical staff, but by correctional officers.  

One person Haines spoke to explained that “if he feels like he might have a fever and a nurse wants to take his temperature, he fills his mouth with cold water and holds it, hoping the fever won’t register.” 

Instead, experts have recommended sectioning off areas in facilities for people who test positive for the coronavirus, which avoids total isolation and allows programming to continue. According to guidelines released by the Vera Institute of Justice this week, facilities should “avoid use of lockdown as a first response and continue programming, classes, jobs, and recreational activities.” At the same time, facilities should have a plan in place to bring incarcerated individuals who demonstrate a need for “intense or acute care” to a hospital for proper healthcare.

Experts have also recommended coordinating prison and jail responses to coronavirus with those of their greater jurisdiction. The National Commission on Correctional Health Care has explicitly recommended that jails and prisons coordinate “prevention, identification, and management” with local government health authorities—although some medical care providers in jails and prisons are private corporations that often operate outside of government oversight. 

Health experts have similarly urged that prisons and jails not be viewed as separate from the broader public, and that any response that includes the deployment of public resources—including health workers and testing kits—to public spaces such as schools or nursing homes also include jails and prisons. 

These calls have come in addition to what has been by far the most common request from public health officials and criminal justice advocates alike: decarceration. Experts have noted that prisons and jails, overcrowded with a uniquely vulnerable population and where social distancing is not an option—are likely to become outbreak hotspots. Thankfully, officials are increasingly heeding those demands and taking steps to reduce their incarcerated population. Without meaningful measures in place to prevent the spread of viruses inside facilities, any efforts to effectively and safely respond to an outbreak will be made much more difficult.

The lesson of recent history is clear: When incarcerated people contract COVID-19, they need healthcare, not punishment. Whether those in charge have learned that lesson will become clear in the coming weeks.

Joshua Manson is a writer and researcher based in Brooklyn, New York.