Punishment by Pandemic

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Chinese authorities spray for coronavirus. Photo by PK Bazaar via Flickr

The public health response to COVID-19 has failed prisoners, according to a new paper published by researchers at the National Institutes of Health (NIH).

The paper’s authors, Camila Strassle and Benjamin Berkman, both of the Department of Bioethics at the National Institutes of Health (NIH), examined the public health response to COVID within federal and state prisons, and local jails.

They concluded that not enough has been done to curb the spread behind bars, putting many inmates at risk of catching the virus, or losing their lives to it.

“Prisons and jails are often a hotbed of airborne infections like COVID-19 as a result of chronic overcrowding, unavoidably close living quarters, and incarcerated people’s underlying health risk factors,” the authors wrote.

The COVID-19 pandemic is especially dangerous within correctional facilities, according to the paper, which noted that the top five clusters of COVID-19 infections around the country are in carceral facilities.

“Incarcerated people are at least two-and-a- half times more likely than the general population to acquire COVID-19,” the report said.

These high infection rates are directly related to scientific evidence, proving prisons and jails have long been especially “dangerous” and susceptible to health crises, the authors begin.

Epidemiological evidence suggests that mass incarceration significantly increases contagion rates for infectious diseases. In a 2020 study cited by the authors, researchers found that after analyzing jail population compared to infectious disease deaths from 1987 to 2017, when jails increased their population, inmate’s “mortality rate due to infectious disease increased by an alarming 9 percent.”

The authors cite that this high infection rate occurs behind bars because of dangerous overcrowding, poor air circulation, limits to soap and cleaning supplies, as well as a lack of adequate healthcare.

All of these things, the authors say, are variables and conditions that carceral facilities are seeing during this current pandemic.

‘Not Doing Enough’

When it comes to federal and state responses to this pandemic, the authors say they’ve “had little success” and haven’t done enough to stop this health crisis.

They first mention the blatant disconnect between the Bureau of Prisons’ release criteria and the federal detainees like Michael Cohen and Paul Manafort — who have both been released due to the pandemic despite not meeting criteria.

Moreover, the authors cite even basic preventive measures have not been consistently applied within facilities.

For example, the authors cite a New Yorker report that “prisons in Arkansas asked officers to come to work even if they tested positive for coronavirus,” while it’s been well documented in other state facilities that signs about hand-washing are posted — but they continue to charge inmates for soap access.

“The weight of existing reports overwhelmingly suggests that prisons and jails are in a state of crisis,” the authors write.

Support for the Early Release of Prisoners

The authors provide moral, practical, and legal arguments for supporting the early release of incarcerated individuals, as they say considering the lack of attention to this health crisis has left us with no other option than to release inmates before the virus overtakes the population behind bars.

On moral grounds, the authors discuss how “all people, including those who have forfeited some of their rights via incarceration, have a very strong interest in health that gives us a correspondingly strong reason to protect it,” as discussed by the United Nations and the World Health Organization (WHO), respectively.

Practically, the argument for releasing prisoners during an infectious disease pandemic begins with the fact that implementing physical distancing in prisons is nearly impossible. Moreover, it is in the best interest of a prison to not only keep the inmates safe and healthy, but to protect the staff as well.

For the most part, the authors discuss legal action where inmates have raised that continued detention constitutes a violation of their rights under the Eighth Amendment against cruel and unusual punishment, the Fifth, Sixth, and Fourteenth Amendments as it relates to speedy trial, as well as the Americans with Disabilities Act citing that they are not being given “reasonable accommodations.”

“Nevertheless, the current litigation indicates that incarcerated people do have a plausible case for release,” the authors write.


The authors say that as a result of the justice system’s failed healthcare response, the clearest and simplest way to fix the situation is to reduce the inmate population.

This is not a novel idea, the authors write, noting that members of Congress have been trying to accelerate releases through the CARES Act, while the ACLU has been urging the Department of Justice and Federal Bureau of Prisons to free high-risk inmates since the start of the pandemic.

Based on the need to release inmates to help stop the spread of the virus, the authors suggest five priorities for identifying which individuals to release first.

        • Have low risk of recidivism for a violent offense;
        • Are being held pretrial;
        • Have high risk of mortality from COVID-19;
        • Are nearing the end of their sentences; and,
        • Have custodial responsibilities to third parties.

“U.S. officials have a serious obligation to protect incarcerated people during a global pandemic, which, for practical purposes, translates into an obligation to rapidly and safely reduce the incarcerated population,” the authors conclude.

“The number one goal of public health responses to COVID-19 should be to save lives.”

Camila Strassle is a first-year post-baccalaureate bioethics fellow in the Department of Bioethics at the National Institutes of Health while pursuing a JD at Stanford Law School.

Benjamin E. Berkman is a faculty member in the Department of Bioethics at the National Institutes of Health, and he has a joint appointment in the National Human Genome Research Institute, where he serves as the Deputy Director of the Bioethics Core.

The full paper can be accessed here. 

Additional Reading:  COVID-19 Death Toll Reaches 22 in San Quentin

‘Dozens of Prisons’ Targeted in COVID-19 Civil Rights Lawsuits

Andrea Cipriano is a TCR staff writer.

One thought on “Punishment by Pandemic

  1. I relate completely to your article regarding COVID in jails & prisons and the danger it imposes on inmates.
    My son is in our local facility & for the last 2 years.
    He is 23 yet When he gets any type of cold/virus/cough it immediately goes to his lungs which causes his lifelong asthma To become severe.
    Along with the staff at the facility have taken no steps to disinfect or wear masks.
    An inmate tested positive last week. The next day 4 more had. Within 12 hours a report of 44. The next day it went to 66. That’s a huge jump in a short amount of time.
    I fear for my son. The medical care especially urgent is non-existent with unqualified medical staff.
    Why our judges & prosecutors do not care about the lives of inmates is beyond me. Their crimes does not define who they are.
    It truly is a biased system where we live. If you are rich you get an automatic “get out of free” card.
    Thank you for your article.

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