By Nancy Rosenbloom, Senior Litigation Advisor & Kyle Virgien, Senior Litigation Advisor, ACLU
Twenty-one months into the pandemic, many people outside of jails, prisons, and civil detention centers in the U.S. are rushing to get their booster vaccines and are spending time with friends and family in ways that felt impossible less than a year ago. The pandemic is far from over, as the omicron variant has made clear. Still, heralding vaccines and rapid tests, public officials are urging vaccinated Americans to celebrate the holidays together, carefully. “We’ll get through this,” President Biden said in his address this week.
Yet for people who are incarcerated, the risks of COVID-19 infection remain extraordinarily high, and the risk of death is even higher than for those outside these facilities. Carceral institutions haven’t equitably applied, or in some cases even made available, advances made beyond prison walls — even in the face of court orders requiring basic public health measures. And as omicron spreads rapidly across the country, people in jails and detention are among the most vulnerable, yet again.
The COVID-19 pandemic has made the need to decarcerate more urgent than ever. More than half a million people incarcerated in prisons have been infected; this number doesn’t even account for people in jails or ICE detention and is surely an undercount. Further, there is abundant proof that the failure to protect incarcerated people from the virus contributes to the spread of COVID-19 in surrounding communities.
As the latest highly transmissible variant sweeps through the country, the ACLU and our partners continue to hear from incarcerated clients who fear for their safety. One client incarcerated in the Maricopa County, Ariz. Jail, D,* has been held in an area full of bunk beds, crammed in with as many as 130 other women. Despite the fact that she is medically vulnerable to COVID-19 infection, she waited more a month after filing a medical request for a vaccine to receive one. L, who is held at the massive Broward County, Florida jail, testified at a court hearing that he requested a vaccine multiple times but didn’t receive one, and that the jail never tested or symptom-screened him or others when they were moved from one housing unit to the next or even when they had obvious COVID-19 symptoms.
C, who recently immigrated to the U.S., was first held in a detention center at the Southern border and then transferred to an ICE facility in Washington state. Even though several people in the group had cold-like symptoms or fevers, nobody was tested before this transfer. They spent a full day shackled next to each other on buses and a plane, unable to move or socially distance. A few days later, C received a positive test result for COVID-19.
These disturbing stories are far from anomalous, and if swift action isn’t taken, we will continue to hear more of them as omicron spreads. Local jails, prisons, and civil detention facilities like those operated for ICE all have the responsibility under the U.S. Constitution to care for the people in their custody. Despite that fact, incarcerated people remain at least three times as likely to be infected with COVID-19 and around three times as likely to die of the disease than people in the free population. These statistics are likely even higher because, researchers have discovered, so many corrections systems either don’t report numbers at all or vastly under-report information based partly on their widespread decisions not to provide sufficient COVID-19 testing.
In the United States, carceral facilities are among the worst places to be when it comes to the risk of illness and death from COVID-19. The virus can spread and adapt in such places, which lack social distancing, adequate hygiene, and health care. Jails, prisons and detention facilities are congregate living settings designed to cram large numbers of people into small spaces. Vaccine education and availability is also limited and ineffective, often leading to “shockingly low” rates of vaccination among incarcerated people, as one health expert testified at a hearing about a Tennessee jail holding more than 2,100 people. Making matters worse, many jails and prisons refuse to even ask their staff if they’re vaccinated, much less require it. Staff go in and out to the community daily, becoming the primary vectors for COVID-19 transmission.
Even as Biden and other officials urge people nationwide to get their initial vaccinations and booster shots as quickly as possible, aNew England Journal of Medicine article concluded that “vaccination alone will not be enough to stop carceral outbreaks.” And even if there were very high rates of vaccination in jails and prisons and adequate physical distancing, the article says, “even a vaccine with 90 percent efficacy will leave many people at ongoing risk for COVID-19, given the extraordinarily high rate of transmission in jails and prisons attributable to rampant overcrowding, inadequate testing and health care, high-volume daily inflow and outflow of staff and detainees, lack of personal protective equipment, and normalized systematic neglect of the welfare of incarcerated people.”
Jails and prisons know what they have to do to keep people as safe as possible from COVID-19 — the CDC has issued and updated detailed guidance specifically for those facilities. But they’re still not doing it. Courts have found “widespread callous disregard for the safety of immigration detainees” across the country, a “vaccination rate at the jail … [that] signals a population in deep peril,” and many more failures of jails and prisons to take precautions.
All across the U.S., incarcerated people have sued their jailers to get even the most basic public health protections. The ACLU represents people in 83 of those cases, along with local legal partners and community-based allies. Our clients are suing to be released whenever possible, and for adequate masks, cleaning supplies, physical distancing, ventilation, vaccinations, educational materials, and no-cost COVID-19 testing and medical care. They are also seeking to require staff who enter the facility from the outside to be vaccinated so that they are less likely to bring the virus into the facility.
These cases, along with advocacy and legislative efforts, have resulted in the release of tens of thousands of people at serious risk across the country. Even in successful cases where courts have issued injunctions and approved consent decrees, though, many of those jails and prisons are refusing to comply with court orders. There remains much more work to be done, and jails and prisons are filling up again.
How Can You Help?
It’s difficult to get the attention and empathy of many people in centers of power when it comes to their community members who are locked up, but that attention is there in communities, faith groups and activists, and especially among the friends and families of loved ones who are incarcerated.
The community can show it cares. This is especially important for your county’s jail, which your local sheriff often controls. Speak out, keep the focus on the sheriff or other decision makers, publish op-eds, hold forums, and listen to the wisdom of people who are or were incarcerated and their loved ones. You can call on the authorities to:
- Immediately identify as many people as possible for rapid releases and let them out;
- Reduce arrests and prosecutions for low-level crimes to prevent population increases in jails (a policy that has proven to actually decrease public complaints of these crimes);
- Require staff vaccinations or achieve high vaccination rates among staff;
- Provide appropriate vaccine education to incarcerated people, with the chance to ask questions privately of trusted medical personnel or community leaders;
- Increase COVID-19 testing; and
- Make tests, vaccines, and COVID-related medical care free of charge.
If the situation seems dire, that’s because it is. But you don’t have to sit back and watch this disaster unfold — you can take meaningful action in your own community to make it clear to your elected leaders that decarceration is essential, and that it is their responsibility to keep the people in their custody safe.
*Names have been abbreviated to protect the privacy of our clients.
