How Jails Amplify a Pandemic (and Why Lawmakers Must Act Now)

In the public health context, jails and prisons are effectively the less-sanitary, land-bound equivalent of a cruise ship. Their design makes “social distancing” impossible, they lack the capacity to provide necessary medical care, and their population is at greater risk from pandemic illnesses like COVID-19. For these reasons and others, epidemiologists are unanimous in warning of the potential of jails and prisons to serve as virus amplifiers and incubators, and the immense risk that entails for correctional employees, detainees, and the general public. Unfortunately, Virginia isn’t doing nearly enough to mitigate these risks.

Since being declared a pandemic on March 11, 2020, the COVID-19 outbreak has had profound effects on daily life and public welfare in the Commonwealth of Virginia. As is well-known by now, the virus is both highly contagious and potentially deadly, and has caused alarm among public health professionals because of how quickly it has spread, its ability to overwhelm medical infrastructure, and for much too long, a shocking level of inaction. It is considerably more contagious than the flu, and because it has an incubation period of around 14-days, people can be infected without knowing it, and can infect others even if they don’t feel sick. These unique aspects of the virus have created a potential nightmare scenario for public health; current estimates are that between 20% and 80% of the world’s population might become infected with the virus, and that 1% to 6% of those infected will die.

The fatality rate depends in large part on how quickly the virus spreads. Community-wide efforts to “flatten the curve”—extending the period of time over which the disease spreads, thereby easing the burden on the health care system—rely mainly on the concept of “social distancing,” or reducing contact between individuals so that fewer people are exposed to the virus. Along those lines, on March 12, 2020, Governor Northam declared a state of Emergency for Virginia, to remain in effect until June 10, 2020. The Governor has since used his emergency powers to ban gatherings of 100 or more people, recommending that “[i]f you are planning an event with several people, you should cancel it, period.”[1] He later narrowed that ban to gatherings of just 10 persons or more, consistent with the recommendation of the Centers for Disease Control and Prevention which has urged “a nationwide halt to gatherings . . . for the next eight weeks.”[2] As of March 25, 2020, Governor Northam mandated that all non-essential businesses in Virginia close for a period of 30 days, and many public health professionals are advising the public not to gather with anyone outside of their immediate household, be it 9 other people, or even just one.

Virginia Courts have also taken unprecedented measures to address the crisis. On March 16, 2020, an order issued by the Supreme Court of Virginia went into effect, “declaring a judicial emergency in response to [the] COVID-19 emergency.” The order suspends “all non-essential, non-emergency court proceedings” until April 6, 2020, and tolls all deadlines for a period of 21 days, in addition to recommending changes to policy that would limit new jail admissions. See S. Ct. of Va., Order Declaring Judicial Emergency (March 15, 2020). It appears likely that this judicial emergency will lead to a suspension of proceedings well beyond April 6, 2020.

Exponential Increases in Infected Population

On Tuesday, March 17, 2020, “there were just more than 5,700 confirmed coronavirus cases in the United States. That number climbed above 11,500 on Thursday [, March 19] and officials indicated the number [would] continue to rise sharply as more test results become available.”[3] Unfortunately, that prediction proved accurate: by March 22, there were 33,566 confirmed cases in the United States, an increase of 9,359 from the day before, and three-times the total just three days before. By March 22, 419 Americans had died. By March 23, 2020, the numbers of confirmed cases and deaths had risen another order of magnitude from the previous week, to 43,599 cases and 545 deaths. The COVID-19 crisis is not temporary. To the contrary, it is becoming worse by the day, nearly living up to the most dire projections.

The Unique Risks Posed by COVID-19 in Jails and Prisons

Although much is being done to limit the spread of infection in public, the measures taken within the justice system have been far from adequate, especially considering the uniquely serious risks of COVID-19 in the correctional setting—jails and prisons—to those who work and are detained in correctional institutions, and to the broader community. As has been widely reported the past several weeks, jails and prisons are ideal incubators of COVID-19, placing detainees and correctional staff at a heightened risk for contracting it, while offering limited options for preventing transmission or providing medical care to those who have been infected.[4] Incarcerated persons are unable to take many of the precautions recommended by the CDC and other public health agencies, and as a result are at increased risk of contracting the disease. Cruise ships played a major role in the early spread of COVID-19; as noted above, for public health purposes, jails are effectively less-sanitary, land-bound cruise ships. In Virginia’s jails and prisons, many people live in close-quarters, in closed spaces, with shared ventilation; common food preparation; communal living, bathing and eating; a limited ability to practice personal hygiene; and limited ability to leave the facility when symptomatic or after potential exposure to the virus. Further, jails present another troubling variable: “jail churn,”[5] where members of the community regularly move in and out of the facility bringing illnesses with them into the jail and then, after infection, out into the community.

In addition to the foregoing, the occupants of a jail, much like the residents of Wuhan, China (extremely poor air quality, high number of smokers) and Italy (large elderly population), are especially susceptible to COVID-19 infection and the worst health outcomes associated with it, including death. According to the Centers for Disease Control, chronic health conditions that raise the risks associated with COVID-19 infection include HIV/AIDS, tuberculosis, pulmonary disease (e.g. emphysema), lupus, cancer, liver disease (cirrhosis, hepatitis), sickle cell anemia, being the recipient of an organ transplant, pregnancy, and a variety of neurological disorders (cerebral palsy, epilepsy, stroke, intellectual disability, moderate to severe developmental delay, muscular dystrophy, or spinal cord injury). As noted in the graphic below, from the Prison Policy Institute, these conditions are much more prevalent among incarcerated people than they are the public at large.

The special vulnerability of prisons and jails to infectious disease, and particularly COVID-19 is readily apparent from the coronavirus outbreak in China. Coronavirus “exploded” in China’s prisons, and it did so suddenly and rapidly, with reports of more than 500 cases spreading across five facilities in three provinces.[6] As of February 25, there were 555 confirmed infections in five prisons of three provinces—Hubei, Shandong, and Zhejiang.[7] The situation became so dire in Iran’s correctional institutions that on March 9, 2020, it “temporarily freed about 70,000 prisoners to combat the spread of the coronavirus in jails.”[8] And on March 23, 2020, New Jersey announced that it would be releasing inmates serving a year or less in local jails.

States in the West and Northwest, where the outbreak hit earliest and hardest in the U.S., have acknowledged the unique risks that jails and prisons pose during a pandemic, and are planning accordingly, including by finding ways to release prisoners and limit new admissions.[9] Additional data compiled by the Prison Policy Initiative demonstrates the risk that jail contamination poses to the community at large due to post-infection release of contaminated inmates.[10] As one expert put it, “[i]f it’s inevitable that [coronavirus] is going to hit the country, it’s even more inevitable it’s going to hit the jails and prisons . . . [a]nd it’s going to spread like wildfire.”[11]

The Governor and General Assembly Must Act

Action taken now to release those detained in Virginia’s jails and prisons will help curtail this risk. Localities should already be taking action by limiting new jail admissions: releasing those charged with new offenses on summons, liberally granting bail to defendants who do not pose a significant threat to the community, and asking that jail imposition or execution of sentences be suspended, or that they be served through an alternative to incarceration, such as home confinement, electronic monitoring, or community-based work release.

Unfortunately, word throughout the state is that judges and prosecutors simply haven’t taken the public health crisis seriously enough, and are not concerned about the fundamental human rights of those whose liberty they control. Virginia judges have held defendants without bond even where prosecutors have recommended release. They are continuing indefinitely the cases of many individuals whose cases are pending trial, without granting them new bail hearings, and with no idea of when those cases might finally be adjudicated. And they are refusing to hear requests to reconsider and reduce local jail sentences—which by definition are short (less than 12-months in duration, and usually much less than that) and the large majority of which were imposed as punishment for non-violent offenses.

Anyone charged with a misdemeanor, serving a misdemeanor sentence, or even serving a sentence in a local jail for a non-violent felony offense will be released eventually, and will likely be released very soon. If they are released after spending time in what amounts to a virus incubator, the harm to the public could be immense, potentially even leading to death. That is, if they don’t die themselves because of the heightened risk of being infected, and the even more meager medical services available in a jail.

The public has a choice to make. Either, 1) stubbornly insist that defendants serve out sentences for minor, non-violent conduct, even where it poses a dramatic risk to public health, or; 2) start taking seriously the human rights of your court-involved neighbors, and start accepting the reality of the unique harm possible if the pandemic reaches the correctional setting. The latter—the sensible choice—requires lawmakers to act now, by finding ways to reduce jail and prison populations immediately. If judges and prosecutors won’t, legislators, the governor, and local government must step-in and take meaningful action.

Practical Steps

This can be accomplished one of two ways. First, the General Assembly, during a special session should consider laws mandating release during the pandemic of individuals charged with misdemeanors and many non-violent felony offenses, and mandating suspension or alternative service of sentences for individuals serving 12 months or less for non-violent conduct. It should also consider eliminating the presumption against bond for “crimes of violence” that did not actually involve any violence (which is a surprising number in Virginia). Second, the Governor should consider using his clemency powers to “commute” or grant conditional pardons to persons serving active sentences of 12 months or less. As mentioned, New Jersey just took this sort of swift, thorough action, and other states are considering the same.

Right now, the health of Virginians poses the greatest risk to community safety, if not daily life as we have grown accustomed. In other spheres, drastic measures are being taken with the knowledge that entire businesses may go under, children will not be educated, and people of faith will be unable to worship. We are not asking for anything nearly as extreme. In an era of mass incarceration, reducing the jail population and limiting jail sentences were common sense measures even before this pandemic; they mostly failed during the 2020 legislative session due to the stubborn persistence of traditional, tough-on-crime attitudes among many in Virginia House of Delegates. Failing to adopt those measures now, in the face of obvious public health consequences from inaction, goes well-beyond the realm of public policy disagreement; it would demonstrate a callous indifference to the the most basic rights of justice-involved Virginians, to life and liberty. And in doing, it would put the public squarely in harms way.

FOOTNOTES

[1] Northam Bans Events Over 100 People Statewide as Virginia Has 45 Confirmed Coronavirus Cases, Daily Progress (Charlottesville, VA) (March 15, 2020), at https://www.dailyprogress.com/news/state/ northam-bans-events-over-people-statewide-as-virginia-has-confirmed/article_2053b656-48fe-5db6-bfae-26b15561ce8e.html.

[2] https://www.washingtonpost.com/world/2020/03/15/coronavirus-latest-news/

[3] https://www.washingtonpost.com/world/2020/03/19/coronavirus-latest-news/

[4] The Center for Disease Control advises taking steps to protect yourself from exposure by avoiding close contact with people who are sick, and to put distance between one’s self and other people. See https://www.cdc.gov/coronavirus/2019-ncov/about/prevention-treatment.html. Other tips include disinfecting oneself and one’s environments multiple times a day.  The World Health Organization advises maintaining “social distancing,” which means to “[m]aintain at least 1 metre (3 feet) distance between yourself and anyone who is coughing or sneezing.” See https://www.who.int/emergencies /diseases/novel-coronavirus-2019/advice-for-public

[5] “The pathway for transmission of pandemic influenza between jails and the community is a two-way street. Jails process millions of bookings per year. Infected individuals coming from the community may be housed with healthy inmates and will come into contact with correctional officers, which can spread infection throughout a facility. On release from jail, infected inmates can also spread infection into the community where they reside.” Pandemic Influenza and Jail Facilities and Populations, American Journal of Public Health, October, 2009.

[6] https://www.nbcwashington.com/news/coronavirus/us-prisons-jails-spread-of-coronavirus/2233762/? _osource =db_npd_nbc_wrc_twt_shr

[7] https://thediplomat.com/2020/03/cracks-in-the-system-covid-19-in-chinese-prisons/

[8] https://www.reuters.com/article/us-health-coronavirus-iran/iran-temporarily-releases-70000-prisoners-as-coronavirus-cases-surge-idUSKBN20W1E5

[9] https://www.theverge.com/2020/3/7/21167807/coronavirus-prison-jail-health-outbreak-covid-19-flu-soap; https://www.sacbee.com/news/california/article240962761.html

[10] See https://www.prisonpolicy.org/blog/2020/03/06/pandemic/ at footnote 2.

[11] https://www.sacbee.com/news/california/article240962761.html