ACLU Warns That Jails Could Double US COVID-19 Deaths
The American Civil Liberties Union on Wednesday warned that U.S. fatalities from the COVID-19 pandemic could be almost twice as high as U.S. government estimates unless drastic action is taken to lower the jail population.
According to an epidemiological model from the ACLU and researchers from Washington State University, the University of Pennsylvania, and the University of Tennessee, an estimate from the Trump administration that fewer than 100,000 Americans will die from the coronavirus may represent half the actual death toll if jails continue to operate as usual.
“What our model tells us with near certainty is that ignoring jails in the public health measures taken to mitigate COVID-19 spread will result in the substantial undercounting of potential loss of life,” the ACLU said in a report released Wednesday.
Due to the omission of jails from most public models, the ACLU says the government is failing to account for the virus’ impact on the incarcerated population, which will suffer higher infection and death rates than the population at large. Compounding matters is that any jail outbreak will spill over into communities outside jails, the ACLU says.
The report estimates if arrests are halted for all but the most serious crimes, such as murder, rape and aggravated assault, and release rates are doubled for those already detained, 23,000 people in jails and 76,000 in the surrounding communities could be saved.
If arrests were ceased for minor offenses alone, 12,000 individuals in jail could be saved, with another 47,000 people in surrounding communities, according to the ACLU’s model.
The report comes on the heels of several lawsuits brought by the civil liberties group that aim to reduce inmate populations in various jails and prisons as well as the detainee population in U.S. Immigration and Customs Enforcement facilities.
According to the ACLU, jails can serve as virus incubators for the larger communities in which they exist. There are 737,900 people in a U.S. jail on any given day, most of them pretrial detainees, and individuals who are arrested can be exposed to COVID-19 and then infect their families and communities upon release.
The same holds true for the 420,000 people who work in jails and prisons, the ACLU says. They can be exposed to COVID-19 in the workplace and return home to potentially infect their families and others, the ACLU says.
The ACLU says the status of the U.S. as the biggest jailer in the world, with 4% of the global population but 21% of incarcerated people, also means that relying on models and data regarding infection in other countries like Italy, China and South Korea will end up lowballing the estimated death rate in the U.S.
The risk to the U.S. jail population is enhanced by the system’s substandard conditions compared with those in other Western and European countries, according to the ACLU. Poor health care, overcrowding and a lack of facilities that allow for recommended hand-washing and surface cleaning can make it possible for the virus to spread, the report says.
The report makes several recommendations to lower the U.S. jail population. For example, the ACLU says chief judges or administrative judges can direct the judges in their states to void or suspend arrest warrants for failing to appear in court, failure to pay, and technical probation or parole violations. Judges can also order pretrial release in all cases that don’t involve a risk of flight or the risk of imminent serious harm to another person, the report says.
Prosecutors could also stem the tide by declining to push for custodial arrests in low-level cases, recommending pretrial release in all cases without a risk of serious, imminent harm to another person and identifying detainees who meet this criteria, according to the report.
Feds Slam Suit Over ‘Dangerously Slow’ Prison Virus Steps
The government and the warden at Philadelphia’s federal detention center on Monday fired back at claims that the facility had been “dangerously slow” to adopt measures to prevent COVID-19 from spreading among detainees, in response to a class action seeking the release of inmates at high risk of contracting the virus.
Sean Marler, the facility’s warden, told a federal judge that the U.S. Bureau of Prisons had taken “extraordinary action” in recent months to safeguard prisoners and staff alike from the novel coronavirus and that allegations otherwise raised by three inmates in a class action complaint last week were “uninformed.”
“BOP has in fact taken exhaustive measures at the FDC to protect inmates and staff against COVID-19, with marked success to date,” Marler and the government said, noting that there had yet to be a single positive diagnosis among the facility’s 1,000-plus prisoners and nearly 230 workers.
“All of this is the product of a sustained, all-hands-on-deck campaign to prevent disease in the most challenging time prison officials have faced in our lifetime,” they added.
Timothy Brown, Myles Hannigan and Anthony Hall filed suit April 15 complaining about the cramped conditions at FDC Philadelphia, where two inmates are held in each of the facility’s 100-square-foot cells, and the overall lack of either personal protective equipment or testing for the novel coronavirus, saying the prison has been “dangerously slow” to adopt precautions.
The trio said that the conditions represented a violation of their constitutional rights and created a serious risk that they, and others like them, could end up infected.
The suit included a claim for injunctive relief and a petition for writs of habeas corpus seeking temporary release from the prison for themselves and other detainees at an elevated risk from COVID-19.
But the government and warden said in their response on Monday that the prisoners’ concerns were overblown, both in terms of the conditions at FDC Philadelphia and with the federal prison system writ large.
“While there have been outbreaks at a number of BOP institutions, it is now apparent, additional weeks into the crisis, that BOP is succeeding at the moment in protecting most of its facilities,” the response said.
The government pointed in particular to an outbreak at a federal prison in Oakdale, Louisiana, that the filing said had been “stabilized for weeks.”
According to the BOP website, however, Federal Correctional Institution Oakdale I has reported seven inmate deaths from COVID-19 out of a total of 18 prisoners and 22 staff members who have tested positive for the virus.
The most recent death at the Oakdale facility came last Wednesday, the BOP said in a statement on its website.
The facility’s total inmate population is just under 1,000, according to the BOP.
In Philadelphia, meanwhile, the filing from the government and warden on Monday said that no inmates appeared to be exhibiting symptoms and no inmate testing had been conducted.
In addition to challenging claims that the facility had not taken adequate measures to protect inmates from COVID-19, Marler and the government also argued that the inmates had no legal grounds for pursuing class claims seeking release based on prison conditions.
Instead, they said that the trial courts needed to consider claims from petitioners on an individual basis.
“The issue is laser-focused on the facts of the individual case, which is why the class action proposed here is so inconceivable under the law,” the filing said. “The court must consider, among other factors, the nature and circumstances of the offense charged, the weight of the evidence against the person, and the history and characteristics of the person.”
In a response filed late Tuesday afternoon, the detainees disputed the rosy picture that the government presented in its filing as they pointed to what they said was “very limited testing” for the virus in the federal prison system.
They noted that a total of 22 people in federal custody had died from COVID-19, with 702 inmates and 352 staff members testing positive.
And the virus, they argued, would not wait for individual prisoners to each file individual petitions for release.
“Given these extraordinary times, it is evident that extraordinary measures must be undertaken to ensure that lives are protected where the insidious COVID-19 virus can most easily spread like a wildfire — inside prison walls,” they said. “Petitioners therefore have properly brought this class action petition for writ of habeas corpus to accomplish what must be done to save those lives.”
The detainees are represented by Mary M. McKenzie and Benjamin D. Geffen of the Public Interest Law Center, Linda Dale Hoffa and Margaret Spitzer Persico of Dilworth Paxson LLP and Jim Davy.
The government is represented by William McSwain, Susan Becker, Robert Zauzmer, Landon Jones III and Rebecca Melley of the U.S. Attorney’s Office for the Eastern District of Pennsylvania.
The case is Timothy Brown et al. v. Sean Marler, case number 2:20-cv-01914, in the U.S. District Court for the Eastern District of Pennsylvania.