The COVID-19 Prison Disaster Is No Longer Hypothetical

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

On March 6, the Associated Press reported that America’s jails and prisons were on “high alert,” vigorously sanitizing cells and carefully screening new arrivals for flu-like symptoms, intent on preventing the novel coronavirus from breaching their walls.

“There have been no reports of COVID-19 inside U.S. jails or prisons,” the AP noted at the time. But between the overcrowded facilities, substandard hygiene, and woefully insufficient healthcare that define mass incarceration in this country—along with its dubious distinction of imprisoning more people per capita than anywhere else in the world—the devastating consequences of a potential outbreak were already apparent. “Jail operators in the U.S. are coming to the growing realization that it’s only a matter of time before it strikes here,” the AP reported.

One month later, none of this is hypothetical anymore. The Cook County Jail in Chicago is now America’s largest-known source of infections, linked to more cases than the U.S.S. Theodore Roosevelt, the nursing home near Seattle, or the outbreak in Westchester County, according to the New York Times. On Sunday, the notorious Rikers Island jail in New York City reported the first death of an incarcerated person from complications due to COVID-19: 53-year-old Michael Tyson, held on an alleged parole violation. According to the latest data from the city, at least 287 incarcerated people in its jails are infected with COVID-19, along with more than 500 staff members. In federal prisons, 253 incarcerated people and 85 Bureau of Prisons staffers have tested positive and eight prisoners have died, prompting Attorney General William Barr to declare a systemwide emergency last week. Deaths have been reported in county jails and state prisons in Massachusetts and Michigan, too, and among employees in California and New Jersey.

By the time you read this sentence, these figures will almost certainly be outdated, and the body counts will be higher. The same experts who just weeks ago issued dire warnings about a looming crisis behind bars are now watching their prophecies fulfilled one by one. 

This result was foreseeable, but not inevitable. Well before most of the nation went under mandatory stay-at-home orders, the movement to reduce jail and prison populations in the name of public health was underway. In a letter dated March 5, advocates in Indiana asked Governor Eric Holcomb to review the cases of older and medically compromised incarcerated people “with an eye toward providing medical furloughs or compassionate release to as many of them as possible.” Similar requests came in Louisiana, Illinois, and New York, where the Release Aging People in Prison (RAPP) campaign urged Governor Andrew Cuomo to use his clemency powers to release people to whom COVID-19 poses the greatest danger.

“Why would we keep them in prison just to die, especially when there is a serious health crisis coming their way?” RAPP director Jose Saldana told The Appeal. “This is the only sane, rational, and fair and just solution.” 

Some jurisdictions took heed of warnings like these and promptly began letting people out. In San Francisco, recently-elected District Attorney Chesa Boudin ordered prosecutors not to oppose motions from the public defender’s office to free many at-risk defendants being held before trial. Officials in Oakland, Los Angeles, Cleveland, Sacramento, and Tampa cleared their jails of hundreds of people. The New Jersey Supreme Court signed an order authorizing the release of up to 1,000 people from local jails “to mitigate risks imposed by COVID-19.” Releasing more than 700 people from Pittsburgh’s Allegheny County Jail reduced that facility’s population by 30 percent in just two weeks.

Others did not. In Arizona, Governor Doug Ducey proudly vowed not to release any of the state’s 6,600 high-risk prisoners. In neighboring California, Governor Gavin Newsom balked at the notion of releasing “violent criminals,” explaining that he wouldn’t “use a crisis as an excuse to create another crisis.” Not until the end of March did his administration announce the release of some 3,500 people from the state’s already-overcrowded prison system—a negligible figure in light of the ongoing crisis. These individuals were scheduled to be released within 60 days anyway, and in court filings, lawyers for the state revealed that the releases would actually take place “within the next several weeks.” It is roughly the equivalent of a teacher agreeing to let a few students out a few minutes early because the school is on fire.

Nowhere are the consequences of delay more apparent than in New York, which by a wide margin leads the nation in COVID-19 cases and deaths. As the outbreak intensified  in early March, the New York City Board of Correction, a civilian oversight body, quickly asked the Department of Correction to detail its COVID-19 preparedness efforts. Two weeks later, the Board called on officials to “immediately” remove higher-risk people from jails, noting the system’s “particular challenges to preventing disease transmission on a normal day” and the fact that New York City was lagging behind other jurisdictions in its response. On March 18, after the first person incarcerated at Rikers Island tested positive, the jail’s chief physician, Ross MacDonald, begged judges and prosecutors to “let as many out as you possibly can.” 

“We cannot change the fundamental nature of jail. We cannot socially distance dozens of elderly men living in a dorm, sharing a bathroom,” he said. “Think of a cruise ship recklessly boarding more passengers each day.”

In response, Mayor Bill de Blasio’s office announced the next day that the city had identified 40 people to release from custody; at the time, the city’s jails housed well over 5,000 people. On March 24, he said the number slated for release was up to 300. Cuomo, meanwhile, waited until March 27 to decide to free 1,100 people detained on parole violations; nearly a week later, about half of those individuals apparently remained in custody. 

Releasing people accused or convicted of crimes will never be popular among certain “tough-on-crime” sectors of the electorate, even in the midst of a global emergency. De Blasio’s decarceration plans earned a predictably scathing letter from the district attorneys of all five boroughs, who acknowledged the need for some sort of action but predicted that the mayor’s proposal would “only compound the possible health, safety and other risks, both to the communities and to the individuals at issue.” Cuomo, meanwhile, had to make decisions about capacity while under tremendous pressure from Republican lawmakers, centrist Democrats, and tough-on-crime law enforcement voices to roll back the state’s recently-enacted bail reform laws, which eliminated cash bail for most misdemeanors. 

Last week, in a late-night budget deal he struck with lawmakers in Albany, Cuomo caved, expanding the universe of offenses for which presumed-innocent New Yorkers could end up sitting in jail because they cannot afford to buy their way out. (De Blasio, too, supported the move, asserting the existence of a “direct correlation” between the reforms and a two-month increase in crime.) On Friday, Cuomo bizarrely claimed that he could do nothing more to reduce the state prison population, as if his office’s expansive powers of executive clemency, once exercised by his own father, had suddenly ceased to exist. At a moment when packing people into confined spaces contravenes the advice of everyone who knows anything, the governor’s feigned helplessness made it easier for judges to send people to their deaths.

The same principles that inform social distancing inform these calls to let incarcerated people go: Action must be taken early, before the number of infections explodes and the disease overwhelms the stunted healthcare infrastructure of prisons and jails, leaping from person to person in a place where lectures to remain six feet apart are about as useful as telling people to try breathing less. If leaders don’t act early, nearby hospitals may also quickly exceed their capacities, forcing panicked administrators to scramble to find empty beds. It requires recognizing that for an elected official, weathering criticism from regressive law-and-order types is part of the job, and a more than fair price to pay for preventing preventable deaths.

Politicians considering prophylactic releases face a complex calculus, as they did when considering stay-at-home orders: If these releases have their intended effect, they will seem, in retrospect, like overreactions, because the human suffering they averted never came to pass.

The thing about prophylactic measures, though, is that they do not work if people in power hesitate. In Illinois, the hospital nearest Stateville Correctional Center says it is “overwhelmed” with cases from the prison, and “maxed out on staff” even as it expects to encounter more cases in the days to come. By the time New York City managed to release 900 people, pushing the city’s incarcerated population to its lowest levels in decades, Rikers Island was already under a massive quarantine, with 184 incarcerated people and 205 staffers testing positive for the disease at the time. One analysis found that the infection rate in city jails was seven times higher than the rate in New York City; on Twitter, MacDonald called the situation a “public health disaster unfolding before our eyes.” Where leaders did not act decisively, the wisdom of doing so is apparent only now that people are dying.

This is not to suggest that it is too late to save anyone. By allowing more people to return home and self-isolate, like the millions of Americans who are not incarcerated, Cuomo and de Blasio could still spare thousands of New Yorkers from the terror of riding out a pandemic in jail, cut off from the rest of the world and totally at the mercy of the carceral state’s willingness to put in the work to keep them safe.

But now that a full-scale outbreak is underway, coordinating releases is an even more delicate and logistically challenging task: Letting people go would necessarily involve returning people who may have been exposed to COVID-19 to their communities, and in a city where the disease is already stretching a fragile healthcare system to its limits. Keeping people locked up in cramped cells, on the other hand, would trap them in a petri dish of disease, punishing them for their elected officials’ indecisiveness and leading to more infections and more deaths. 

There is no simple way to address this dilemma. But the fact is that just a few weeks ago, this dilemma did not exist. If leaders had listened to the pleas of experts instead of the jeers of fearmongerers—if they had done the right thing, instead of once again opting for a cautious, politically expedient approach—fewer people would be waiting to get sick and die behind bars. Those who do are victims of their elected leaders’ cowardice.

Jay Willis is a senior contributor at The Appeal.