(March 21, 2020) As the coronavirus pandemic continues to spread throughout Kentucky, we urge you to heed the advice of Chief Justice Minton and “safely release as many defendants as we can as quickly as we can” from Kentucky jails. [1] [Minton Twitter] “We know what a potential disaster this could be and it’s our responsibility to work with jailers and other county officials” to achieve that necessary goal. An outbreak of COVID-19 in the jail would be swift and deadly, and now is the time for decisive preventative measures. As we start to see outbreaks in states that are roughly 1-2 weeks ahead of us in coronavirus spread, the time to act is now. [2] [Rikers Island] [Santa Barbara]. This protective action is necessary to protect those in the jails as well as the community to which the coronavirus will spread if an outbreak were to occur. [3] [Hancock Co., Indiana] [Los Angeles, California] [San Francisco, California]
COVID-19 poses severe infection risks whenever people are in close physical proximity with others, regardless of whether an individual shows symptoms. People in jail are unable to distance themselves from others and take other necessary preventative measures. The risk of spreading infection is especially severe in light of the chronic overcrowding in Kentucky jails. Jails will not have the capacity to contain the spread of infection if they are filled near or beyond capacity. This threatens everyone incarcerated in a jail, along with their loved ones, jail staff, and the state’s public health infrastructure at large.
Not only do jails force people into close physical proximity, but the underlying health conditions that can cause infection or exacerbate harm tend to be very prevalent among incarcerated people. In early March, the Washington State Department of Public Health warned about these very risks, noting that jail populations are “likely to include individuals who have chronic health conditions which weaken their immune systems” and are at “risk because respiratory pathogens may be more easily transmitted in an institutional environment.” [4]
1. Reduction of the Jail Population is Essential to Prevent Spread:
The safest way to ensure that the jail does not become a vector for COVID-19’s spread is to reduce the number of people who are incarcerated. This is particularly imperative for anyone who a judge has already approved for release pending payment of money bail or anyone who would be released but for a technical parole, probation, or warrant violation. Release is also crucial for those who are elderly, immunocompromised, pregnant, medically fragile, or otherwise particularly vulnerable to COVID-19.
Reducing the jail population is consistent with the guidance of correctional experts. Dr. Marc Stern, who has served as Health Services Director for the Washington Department of Corrections, recently urged: “With a smaller population, prisons, jails, and detention centers can help diseases spread less quickly by allowing people to better maintain social distance.” [5]
2. The Jails Are Not Medically Able to Address a Coronavirus Outbreak:
Jails are not equipped to handle the medical crisis that would ensue when trying to address COVID-19 within the jail. [6] [COVID-19 in Prisons/Jails]. The county is required to provide medical treatment to those who are housed in the local detention center. Currently, those medical centers are not equipped with the life-saving medications and medical equipment needed to care for those infected with COVID-19. Even minor cases require medical intervention including expensive lifesaving medications. Major cases require use of ventilators and other equipment needed to preserve respiratory function. The concern about medical supplies is supported by coronavirus related issues in other countries.[7] [Italian Medical Field].
3. Counties May Incur Liability Due to Illness and Coronavirus Outbreak:
Questions remain what would happen if a jail were to have an outbreak causing a lock-down of the local detention center. It is possible that those on short sentences would be required to stay in the detention center beyond the expiration of their sentence. In those cases, if a person were to contract the coronavirus after the termination of their sentence – when they can no longer be deemed to be in incarceration because of their crime — it is unknown what liability would be incurred by the county. If a person in that situation were to become very ill or die, the impact on county liability becomes even more concerning.
4. To Protect Jail Staff, the Jail Population Must Be Reduced:
Dr. Stern also explained that reducing the jail population will ease staffing burdens: “If staff cannot come to work because they are infected, a smaller population poses less of a security risk for remaining staff.” Along the same lines, a list of “suggestions to jails for managing the impacts of COVID-19” published last week by the Washington Association of Sheriffs and Police Chiefs proposes “downsizing” jail populations, including by examining who a jail “can release on their own recognizance,” as well as pursuing “alternatives to arrest for certain crimes” and designating “crimes for which your patrol division will not arrest.” [8]
The special vulnerability of prisons and jails to infectious disease, and particularly COVID-19 is readily apparent from the Coronavirus outbreak in China. Coronavirus suddenly “exploded” in China’s prison, with reports of more than 500 cases spreading across five facilities in three provinces. [9] [Washington Post Article]. As of February 25, there were 555 confirmed infections in five prisons of three provinces — Hubei, Shandong, and Zhejiang. [10] [Prisons in China] In addition, other US states which experienced earlier contact with the virus have already begun to confront the contribution of jails to the spread of the disease both within and without the jail. [11] [Article 1] [Article 2] 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. [12] [Prison Policy Initiative] Action taken now to release incarcerated persons will help to curtail this risk.
5. Action Must be Taken Immediately:
Every time the county introduces another person to the jail environment, the risk of spreading COVID-19 among the incarcerated population, jail staff, and the broader community continues to grow. We urge you to undertake all possible avenues for limiting that risk, including:
- Release people on personal recognizance. Exposing people to potential infection because they cannot afford a cash bond threatens the safety of the community by exacerbating a growing pandemic. Going forward, judges should consider that factor release on personal recognizance and all people charged with misdemeanors and low-level felonies. Judges should also reconsider custody status for anyone whose incarceration will make them vulnerable to infection.
- Cite and release people charged with misdemeanors and low level felonies. Law enforcement officials to issue a citation and notice to appear in court when a person is arrested. To preserve resources and prevent infection, law enforcement agencies should issue citations and a notice to appear for everyone charged with misdemeanors and non-sex or non-violent felonies.
- Prioritize immediate release for people who are most vulnerable. Older adults and those with serious medical conditions and fragility face a higher risk for infection. The conditions that can increase one’s risk of infection include diabetes, heart disease, asthma, lung disease, and HIV. [13] These conditions are more common among those who are incarcerated than the general population. [14] Releasing these vulnerable groups from the jail immediately will avoid the need to provide complex medical care within the jail or transfer people to hospitals where capacity may be stretched thin.
- Reduce release conditions and restrictions. Courts must consider whether release conditions will interfere with people’s ability to seek necessary medical screening and treatment as well as the ability to protect and care for any loved ones who may be impacted or vulnerable. No one should be forced to choose between violating a release condition or protecting their health and the health of others. Judges should also ensure that people released are not required to appear in person for check-ins and non-essential court proceedings where infection could spread.
- Ensure care and hygiene for people who remain incarcerated. The jail must follow changing public health protocols and coordinate with public health experts to communicate with staff and people in custody about preventative measures; provide adequate access to hygiene; and provide immediate testing and treatment to those who exhibit signs of infection. Access to care and hygiene must be made free, without commissary spending, co-pays, fees, or any other costs that could discourage prevention and treatment.
To protect the county, detention center employees, and those detained in the local detention center, immediate and necessary action must be taken. The Department of Public Advocacy asks that persons in the following categories be immediately released from detention:
Pretrial Release:
- Individuals with health factors that put them in the high-risk category.
- Any person who is low or moderate risk.
- Any person who is charged with a misdemeanor, non-sexual based felony, and non-violent felony.
Release of those held on contempt, probation violations, and sanctions:
- Any person who is currently held on contempt.
- Any person held for a hearing on a probation violation allegation
- Any person serving on sanctions related to drug court, mental health court, veterans court, or for any other reason.
Release after incarceration:
- Release of any person convicted of a misdemeanor offense that will complete their sentence in the next 90-days on shock probation equivalent to the remainder of their sentence (i.e. 90 days probated for 90 days).
- Release of any person convicted of a felony and sentenced to less than 5-years who was sentenced in the last 180-days on shock probation.
These sensible steps will protect the public from outbreaks, while continued mass detention will not. We know this pandemic presents a range of challenges, and we share your commitment to ensuring the community’s safety and health. We urge you to take necessary action to save lives.
*** A large thank you to the Bail Reform Project and many other defenders who openly shared content that was used to build this post. The KY DPA appreciates your help in the fight for release of our vulnerable jail population.
ENDNOTES
[1] “Time to focus on looming COVID-19 crisis in Kentucky’s overcrowded jails,” Update for March 20, 2020, to Justices, Judges, and Circuit Court Clerks, issued by Chief Justice Minton.
[2] How Coronavirus Could Explode at Rikers Island Jail (coronavirus has reached Rikers Island in New York City with fear the pandemic will explode); More Than A Dozen In Self-Quarantine Following Coronavirus Incident At Santa Barbara County Jail | KCLU (Santa Barbara, California, Jail Employee tests positive for coronavirus);
[3] Hancock County jail staff member in self-quarantine after positive COVID-19 diagnosis | Fox 59 (jail employee in Handcock County, Indiana, in quarantine after testing positive for the coronavirus); To halt coronavirus, L.A. County cuts jail population | Los Angeles Times (Los Angeles County, California, releasing individuals to lower jail population); SF moves to release inmates fearing coronavirus outbreak behind bars | Archives | sfexaminer.com (San Francisco, California, scrambling to reduce jail population)
[4] Washington State Department of Health, Novel Coronavirus (COVID-19) Guidance for Correctional Facilities (March 4, 2020).
[5] Human Rights Watch, COVID-19 Threatens People Behind Bars (March 12, 2020).
[6] ‘We Are Not a Hospital’: A Prison Braces for the Coronavirus | The New York Times (in jails, where social distancing is impossible, and medical care strained, the coronavirus will spread rapidly)
[7] Italy has a world-class health system. The coronavirus has pushed it to the breaking point. (Italy’s medical care system is pushed to its limit by the coronavirus).
[8] Washington Association of Sheriffs and Police Chiefs, Washington State Jails Coronavirus Management Suggestions (March 5, 2020).
[9] US Prisons, Jails on Alert for Spread of Coronavirus | NBC4 Washington
[10] Cracks in the System: COVID-19 in Chinese Prisons | The Diplomat
[11] Prisons and jails are vulnerable to COVID-19 outbreaks | The Verge; California jails, prisons on alert for coronavirus spread | Sacramento Bee
[13] U.S. Centers for Disease Control and Prevention, “People at Risk for Serious Illness from COVID-19” (March 10, 2020).
[14] Prison Policy Initiative, “No need to wait for pandemics: The public health case for criminal justice reform” (March 6, 2020).