Dan McFadden, Staff Attorney, ACLU of Massachusetts
Jordan Glassman, JD Candidate, 2022, UNC School of Law
It might be tempting for some to remark that even if so many COVID clusters are confined to jails and prisons, at least the virus will remain contained. In reality, jails, prisons, and detection centers are “revolving doors for incarceration.” Due to the extraordinarily high rate of incarceration in the United States, there is constant churn as prisoners come and go, and are released back into the community. Staff members are exposed to incarcerated populations at work and then return home to their friends and families outside of these facilities. Prisoners are often transferred between facilities, creating additional opportunities for transmission as they are aggregated, transported, and introduced to new locations. Thus jails, prisons, and detention centers facilitate potent vectors for transmission of COVID-19.
While governments have taken a variety of measures across society to reduce the spread of the virus, jails and prisons have been largely ignored. Death toll estimates often fail to account for the multiplicative effect that neglected prison populations will have on the community.
In order to estimate this error, the ACLU, along with academic researchers, developed an epidemiological model that incorporates the uncounted effects of ignoring jails when estimating the lethality of the virus. The mathematical “SEIR” model groups county populations according to their connection to the virus using these categories: susceptible, exposed, infectious, and recovered. It incorporates the high contact and transmission rates of jails as well as the movement of prisoners and staff between jails and communities. The open-source model also allowed for a high degree of geographic customization, including the effects of local policy choices like arrest and release rates, and the extent to which the population at large is implementing social distancing.
The designers of the model acknowledge that the predicted outcomes are only as good as the input parameters, which are often “sparse and incomplete,” particularly with regards to the clinical and biological aspects of the pathogen. Nevertheless, as long as the errors are consistent, they will not affect the usefulness of the model in predicting which courses of action will achieve the best outcomes.
Each run of the model with varying input parameters told the same story: regardless of the effectiveness of social distancing measures taken outside of jails, the estimates of deaths due to COVID underestimate deaths proximately caused by jails (across communities) by 100 thousand or more. Counterintuitively, the better free individuals practice social distancing, the higher the fraction of the total death toll is proximately caused by poor practices at jails. In other words, the failure to follow widely accepted, common sense public health guidelines at jails results in more deaths to adjacent civilian populations. The ACLU concludes that “social distancing measures can only be effective if we extend them to jails as well,” and notes that these numbers are certainly low since they don’t even account for prisons and detection centers. Through a series of concrete recommendations to governors, judges, prosecutors, sheriffs, and police, they recommend “[saving] lives by safely and swiftly reducing populations in local detention facilities, without any changes in the law.”
But the ACLU is doing more than just recommending policy changes. Nationwide, the national ACLU and its state affiliates have filed more than 145 lawsuits seeking to protect people from COVID-19, including by securing their release from incarceration so that they can safely self-isolate at home and take other recommended precautions to slow the pandemic. These decarceration efforts that have kept more than 37,000 people out of jail, either by securing their release or preventing their incarceration in the first place. The released prisoners include not only detainees from the criminal legal system, but also more than 430 civil immigration detainees released as the result of over 40 lawsuits filed against ICE and its detention facilities.
In Massachusetts, for example, the ACLU of Massachusetts, along with the Committee for Public Counsel Services (the state public defender) and the Massachusetts Association of Criminal Defense Lawyers, petitioned the state’s highest court to combat the pandemic by reducing the number of people incarcerated in the state. The Court ultimately ordered various remedies—including a rebuttable presumption of release for pre-trial detainees—that have resulted in the release of nearly 2,000 prisoners. The ACLU of Massachusetts also represents a class of civil immigration detainees at the Plymouth County Correctional Facility, at least 19 of whom have been released by ICE since the action was filed.
Regrettably, more work remains to be done. In Massachusetts, for instance, there remains a disturbing lack of common standards for addressing the pandemic in the county Houses of Correction, which house low level offenders and pre-trial and civil detainees. There is also a disturbing lack of access to testing. The Plymouth Country Correctional Facility, for example, houses more than 600 prisoners. Multiple prisoners and staff have tested positive for COVID-19 over the course of the pandemic. Nevertheless, over the past month, the facility has tested between zero and two prisoners per week.
Delaying action during a pandemic costs lives. The use of well-understood mathematical models brings into focus that the United States cannot continue mass incarceration on autopilot without creating significant dangers for prisoners and the community at large. The ACLU is vigorously pursuing litigation strategies to implement the lessons from these and other sources of public health data. While advocacy continues in the courtroom, it is not too late for community leaders and government officials to embrace a decarceration strategy to protect public health.
Image from Allen et. al., The Epidemiological Implications of Incarceration Dynamics in Jails for Community, Corrections Officer, and Incarcerated Population Risks from COVID-19 (2020) available at https://perma.cc/W569-NQWS.