Austin, Tx/USA - May 23, 2020: Family members of prisoners held in the state prison system demonstrate at the Governor's Mansion for their release on parole due to the danger of Covid-19 in prisons.

Federal Failures to Protect Incarcerated People During Public Health Crises

By Rachel Kincaid

As the COVID-19 pandemic persists, and as we face the reality that future pandemics are coming (or have already begun), it’s a fitting time for the United States to take stock of how the carceral system has exacerbated the harms of COVID-19, and for policymakers to seriously consider what can and should be done differently going forward.

The United States consistently demonstrates its disregard for people accused and convicted of crimes. It overuses pretrial detention, is the top global incarcerator both per capita and in terms of raw numbers, and disproportionately incarcerates Black, Latinx, Native American, and LGBTQ+ people. Unsurprisingly, given this persistent systemic inequality, the United States has fallen grossly short on carceral responses to COVID-19.

Prisons, jails, and other detention facilities are a tinderbox for the spread of COVID-19 (see also) and other infectious diseases. There are many reasons for this danger, not least of which is the consistently substandard medical care provided in jails and prisons, often by unmonitored, for-profit providers who are incentivized by their flat-rate contracts to provide as little care as possible.

This substandard care breeds justified mistrust of medical staff among incarcerated people. And this mistrust is compounded by the consistent medical mistreatment of Black, Latinx, Native American, and LGBTQ+ people in the United States. As people from these groups are disproportionately incarcerated, they bring their trauma related to medical mistreatment with them to carceral facilities, making them even less likely to trust any medical advice they receive while they’re inside.

In the context of COVID-19, this mistrust has been further compounded by the infodemic surrounding the pandemic. (See also Mass Incarceration and Misinformation: The COVID-19 Infodemic Behind Bars forthcoming in the University of St. Thomas Law Journal.) The infodemic has made it more difficult for incarcerated people to suss out how to use whatever limited power they do have to protect themselves from COVID-19 (e.g., by wearing masks if they’re provided with them); whether carceral policies enacted in the name of COVID-19 could actually help protect them; and whether medical advice they have received is based on science and fact.

And the infodemic has resulted in direct harms to incarcerated people by carceral staff who have bought into the lies. In the fall of 2021, incarcerated people in a jail in Arkansas were given ivermectin to treat COVID-19 without their knowledge, and a lawsuit in Oregon alleges that corrections staff spread misinformation about the pandemic, causing vaccine hesitancy among incarcerated people.

In the face of these failures, the United States has the opportunity to do better going forward.

Decarceration would obviously go a long way in stopping the ongoing harms of COVID-19 in prisons and jails, and preventing such harms from future pandemics and public health crises. (Despite widespread calls to decarcerate at the beginning of the COVID-19 pandemic, widespread decarceration has not occurred.)

Prison and jail administrators can also begin to counteract the harms of public health crises like COVID-19 by treating incarcerated people and their families like human beings, deserving of dignity and respect, with the ability to give valuable input in a dialogue about carceral responses to disease. (During COVID-19, carceral administrators have, in large part, continued to insist on secrecy around their responses by refusing to provide incarcerated people, their families, and their advocates with vital information about both plans to respond to COVID-19 and mechanisms for tracking the efficacy of those responses. Such secrecy breeds distrust and undermines pandemic responses.)

But these kinds of ad hoc solutions depend on concerted action from lots of different individual actors all over the country — actors who have repeatedly proven they cannot be counted on to act in the best interest of incarcerated people. The federal executive branch therefore has a vital role to play in protecting incarcerated people from public health crises through official guidance and resources to carry out that guidance.

Thus far, federal efforts to protect incarcerated people during the COVID-19 pandemic have fallen short. The U.S. Centers for Disease Control and Prevention issued its first guidance on COVID-19 to carceral facilities on March 23, 2020. That guidance was slim and worded in permissive language. Unsurprisingly, many carceral facilities failed to comply with even the CDC’s minimalist suggestions.

Going forward, official public health guidance issued to and about prisons and jails should be worded in mandatory language. And this guidance should include mechanisms and incentives for ensuring that policies are not only enacted, but also enforced (see also). Incentivizing staff to follow infectious disease mitigation policies will better protect incarcerated individuals. And official guidance and requirements for carceral responses to pandemics should include education programs for incarcerated people, especially peer education programs (like the Prisoners for AIDS Counseling and Education Program used to combat HIV/AIDS in New York State’s correctional facilities), to increase buy-in from incarcerated people themselves, and combat any future misinformation campaigns.

The federal judiciary also has a vital role to play.

Most federal courts faced with lawsuits alleging constitutionally insufficient responses to COVID-19 were unwilling to require that jails and prisons do any more than what the minimal CDC guidance called for (if that). But courts are supposed to enforce constitutional standards, regardless of what informal CDC guidance to prisons and jails suggests. Courts may not simply defer to CDC guidance (or, even worse, to prison and jail administrators) to determine whether defendants in a lawsuit have met their constitutional duties. Courts must uphold their duty to ensure that conditions of confinement are constitutional. And federal courts must actually listen to and take seriously litigants’ evidence about whether internal jail and prison policies are actually being enforced, or have been developed in name only.

There is no doubt that the carceral system has amplified the suffering and death wrought by COVID-19, especially for historically marginalized communities. It is appropriate that we acknowledge and mourn these losses. But through strategic and aggressive leadership, especially from the federal government, we have the opportunity to prevent such harms going forward.

Rachel Kincaid is an Assistant Professor of Law at Baylor Law. She teaches criminal law and criminal procedure, and her scholarship focuses on criminal law reform and civil rights.

The Petrie-Flom Center Staff

The Petrie-Flom Center staff often posts updates, announcements, and guests posts on behalf of others.

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