By Udi Ofer, Director, Justice Division

As COVID-19 spreads across the United States, and as more public and private actors take drastic measures to combat this pandemic, it is vital that police, prosecutors, judges, parole officers, and governors also respond immediately by reducing the footprint of the criminal legal system.
 
Public health experts recognize the importance of downsizing jails and prisons as part of the COVID-19 response efforts. Millions of people in prisons and jails eat, sleep, shower, and live in close contact with other people, creating perfect breeding grounds for COVID-19.
 
In response, public health experts have encouraged stakeholders in the criminal legal system to minimize the number of people entering the system in the first place, while also releasing individuals already in prisons and jails who are most vulnerable to the virus.
 
There are about 10 million admissions each year into our nation’s jails, with 650,000 people incarcerated in jails on any given day. Some are in jail because they are serving a sentence of less than a year, but most are incarcerated in jails while they are awaiting their trial, many because they cannot afford cash bail. They can remain incarcerated for weeks, months, or even years, even though they have not been convicted of a crime. During this time, local jails become incubators for COVID-19 because of their confined space and generally poor sanitation.
 
One of the best ways to stop the spread of COVID-19 in jails is to decrease the number of people entering the system. This can be done without compromising public safety, while increasing public health.
 
Police should limit the number of people who are arrested and then detained in jails, even if just for a short time, preventing people from coming in close proximity to other people or in spaces where maintaining hygiene becomes difficult. Police should stop arresting people for low-level offenses, and in many other circumstances can issue citations or desk appearance tickets in lieu of arrest so that people can return home without ever being booked. This will help balance the public safety justifications for arrest with the overwhelming public health concerns presented by coronavirus, and limit the risk of bringing someone who may have the virus into a station and potentially infecting other personnel or first responders.
 
Prosecutors can also use their immense discretion to limit the number of people who are held in jails or other confined facilities by drastically reducing their requests for pretrial detention and carceral-based sentences. Prosecutors should avoid cash bail requests and move for release in all but the very few cases where pretrial detention is absolutely the least restrictive means necessary to ensure a person’s return to court. With a special focus on populations who the Centers for Disease Control has identified as particularly vulnerable, prosecutors should also institute a review-and-release protocol in cases which bail was already sought and the person is currently detained.
 
But the public health response cannot end in jails — it must also include our nation’s prisons, where 1.6 million people live. Reducing the number of people who are currently incarcerated will limit the burdens people face due to incarceration or supervision that place them at elevated risk of being affected by the coronavirus pandemic.
 
Probation and parole agents as well as parole boards must exercise their authority to limit the number of people who are incarcerated or who are forced into public spaces. Agents should cease in-person check-ins to accommodate the need for social distancing, and should allow check-ins to occur by voice or video call. Where those technologies are not accessible to a person under supervision, minimize or temporarily suspend check-in requirements. Additionally, agents should suspend enforcement of any mobility-restricting supervision conditions that impede a person’s ability to seek medical care or to support loved ones who may have COVID-19. Further, limit the number of people being incarcerated by suspending detainers and incarceration for technical (crimeless) rule violations.
 
Finally, governors have a large role to play in the public health response. They have a uniquely powerful ability to stop the spread of COVID-19 and limit the harm it inflicts on communities by decreasing incarcerated populations and creating a culture in which transparency, safety, and the health of all people are the paramount concerns.
 
First and foremost, governors should grant commutations to anyone identified by the CDC as particularly vulnerable and whose sentence would end in the next two years. They should also consider commuting all sentences that would end in the next year, and for anyone currently being held on a technical (crimeless) supervision violation.
 
Importantly, governors should mandate that sheriffs who process these releases coordinate with local service providers and public health experts so that people who may not be able to return home have a safe, accessible place to be that is also close to medical facilities and services. Governors should consider issuing executive orders that seek to achieve these goals, particularly where local system actors are awaiting that guidance.
 
The good news is that some jurisdictions are beginning to take action. San Francisco and Cuyahoga County in Ohio have begun to safely release people from jail due to concerns about coronavirus spreading through the jails. Moreover, 31 prosecutors representing 17 million people have called for the downsizing of jails and prisons as part of the response to COVID-19, including adopting cite and release policies for police, releasing people who are held because they can’t afford cash bail, and reducing immigration detention.
 
One of the best ways to minimize the inevitable spread of COVID-19 in jails and prisons is to decrease the amount of people within the system. Now is the time for bold actions by police, prosecutors, sheriffs, parole officers, and governors to protect people during this public health crisis.
 

By Naureen Shah, Senior Advocacy and Policy Counsel & Andrea Flores, Deputy Director of Policy

Many of us are scared for our families and friends right now because of COVID-19. Every day we learn new information about the virus. Today we know that all of us, even the young and healthy, are at risk of this disease and serious complications from it. We cope and try to make ourselves safer, whether by social distancing, washing our hands more, or eating nutrition-packed meals.

But people in government custody — including the 37,000 immigrants held in immigration jails and prisons throughout the country, and thousands more held near the border — don’t have these options.  They are being held in deadly conditions. That is why in addition to calling on public officials to downsize prisons and jails in the criminal legal system, the ACLU is calling on the government to utilize all available options to reduce the number of people in immigration detention. Ultimately, no one, whether they are a citizen or an immigrant, should be forced to live in conditions that imperil their lives during this public health crisis.

Immigrants in government custody are forced to live, sleep, and eat together. Some spend nearly all day in large rooms filled with closely packed bunk beds, or just long concrete benches. Others live in dank two-person cells, sometimes with minimal ventilation. Dozens of people share toilets and showers, sometimes with no divider and without disinfection between use. Social distancing is not an option. With everything we’ve learned from the Centers for Disease Control, we know these conditions are dangerous, even deadly.

For immigrants in detention, the tools for basic hygiene aren’t available either. Many people don’t have access to soap, let alone hand sanitizer. In Border Patrol stations, many immigrants are detained in overcrowded cells without ready access to sinks and showers. Detained people have described feeling like “sitting ducks, waiting to be infected.” One detained man in New Jersey said he and others were on a hunger strike to try to obtain soap and toilet paper — and that guards reportedly said, “Well, you’re going to have to die of something.”

It can be hard if not impossible to get medical attention, including access to previously prescribed medications. For example, it is not uncommon for detained immigrants to be given Tylenol for serious illnesses, including HIV and pneumonia. It’s no wonder that since October, 10 people have died in ICE custody. And over the past two years, at least seven children have died in CBP custody or shortly after being released, many after receiving delayed medical care or being denied care altogether.

The ACLU has long said that the vast majority of people in immigration jails are being detained unnecessarily. They are being held for processing at the border, or are awaiting their immigration hearings or another administrative action — yet they have completely lost their liberty. COVID-19 lays bare the injustice, and the often life-or-death stakes, of their detention. As public health experts have already stated, “social distancing through release is necessary to slow transmission of infection.” ICE and CBP must immediately start reducing the number of people in detention, starting with the most vulnerable, to prevent the continued spread of COVID-19 to both people in immigration jails, and the staff who work in them.

We are far from alone in raising the alarm bells on this. There is an “imminent risk to the health and safety of immigrant detainees,” according to physicians who have investigated immigration prisons on behalf of the Department of Homeland Security (DHS) and are experts in the field of detention health. They’ve warned that once an outbreak occurs in immigration detention, it will spread quickly and have a devastating impact.

Mass incarceration of immigrants also risks the health and safety of the people who work in these facilities, as well as the communities they return home to. Last week, ICE told Congress it would “utilize alternatives to detention, as appropriate,” but an ICE official later reportedly clarified, “there has been no announcement related to releasing individuals that are currently detained.”

We don’t know how serious the government is about utilizing alternatives. But we do know that options for reducing detention are already on the table. As we pointed out in our lawsuit,
Dawson v. Asher, DHS could use its parole authority to release people on medical grounds, including people whom the CDC and other medical experts have identified are particularly at risk: those over 50 and those who have an underlying medical condition, such as lung or heart disease.

DHS has a range of options to release people from detention: on bond, humanitarian parole, or an alternative-to-detention program. Even a former ICE chief, John Sandweg, called on ICE to utilize its options, warning that an outbreak will “spread like wildfire.” Many people in ICE jails and prisons have family or sponsors in the U.S., with whom they could live and, if necessary, quarantine safely. Likewise, people in CBP custody could be released to family, community sponsors, or shelters with proper precautions in place

There has perhaps never been a more urgent time for ICE and CBP to reduce the number of people they’re holding in detention — this is a health crisis and prevention and containment is key. Already, at least two staff members and one detained individual at immigration jails in New Jersey and Texas have tested positive for COVID-19, potentially putting at risk hundreds of detained people and staff.

Our nation’s collective health depends on the Trump administration following the advice of doctors, scientists and public health experts. These experts are telling us that social distancing is necessary to curb COVID-19. They are also telling us that access to adequate healthcare is critical. None of these are options for people trapped in immigration detention, and for the officers and staff who have to report to work. We know this is wrong. ICE and CBP must do the responsible thing: reduce the number of people in detention, starting with the most vulnerable, to keep them safe from COVID-19 before it is too late.

By Maria Morris, Senior Staff Attorney, National Prison Project

The country and the world face a public health emergency in the new coronavirus causing COVID-19. The media is filled with concerns about how we will respond. Will we close schools? Cancel sporting events and other large gatherings? Work from home? Avoid public transportation?

But little has been said about one of the most vulnerable sectors of our population: the people in our prisons and jails. Although people often think of prisons and jails as closed environments, they are not. Medical staff, correctional staff, and visitors come from the community into the facilities every day and then return home. People are admitted to and released from prisons and jails, and they go back and forth to court and to medical appointments. There is ample opportunity for a virus to enter a prison or jail, and for it to go back out into the community.  

Once a contagious illness enters, conditions in correctional facilities are highly conducive to it spreading. People in prisons and jails live in close proximity to each other. Many are housed in large dormitories, sharing the same space. Even where people are housed in cells, the ventilation is often inadequate. People in prisons and jails are often denied adequate soap and cleaning supplies, making infection control nearly impossible.

Many people in prisons and jails are in relatively poor health and suffer from serious chronic conditions due to lack of access to healthcare in the community, or abysmal healthcare in the correctional system. While people sent to prisons and jails tend to be young, the harsh sentencing policies of recent decades mean that the prison population is aging. Medical staff are generally stretched thin even in the best of times. Though incarcerated people have a constitutional right to adequate medical and mental health care, the reality is they too often do not have access to it.

All this means that prison and jail populations are extremely vulnerable to a contagious illness like COVID-19. Moreover, prisoners have fewer options for protecting themselves and others. They don’t have the option to stay away from other people when they are sick. They can ask for medical attention, but prisons and jails have few infirmary beds and fewer rooms for medical isolation.

If medical staff become ill or have to be quarantined, there will be even fewer people available to provide care. If correctional staff become ill or need to be quarantined, there will be fewer officers available to bring sick people to hospitals, to the infirmary, and even just to keep an eye on who in the facility is showing signs of illness.

To limit outbreaks of COVID-19 in jails and prisons, officials must act, and they must act quickly. They should coordinate with local public health officials to determine the most appropriate measures to take, given the local conditions and the peculiarities of the correctional environment. While the plans will differ from facility to facility, there are points that should be addressed in any plan:

• How will all people in the facility — incarcerated people, staff, and visitors — be educated so they can understand the risks, protect themselves, and protect others? This will ideally be operationalized and conducted at scale.
• Under what circumstances will staff and people incarcerated in the facilities be tested for the virus? How many tests are needed?
• If people who are incarcerated require quarantine and/or treatment, how will that be accomplished? 
• If medical staff must be quarantined or become ill, how will the facility monitor, quarantine and treat the prison or jail population?
• If correctional staff must be quarantined or become ill, how will the facility operate, both in terms of addressing the virus and in terms of simply maintaining necessary services, safety, and security?
• If incarcerated people must be quarantined or become ill, how will the facility continue necessary operations that are reliant on the prison or jail population, such as food preparation?
• Are there particularly vulnerable populations, such as the elderly, or immunocompromised, and how can they be protected?
• How will the facility meet the challenges of COVID-19 without violating the rights of the people in its custody?

People in government custody, including in prisons, jails, and civil detention, are often forgotten in emergencies. This creates unnecessary suffering and loss of life. We have the opportunity to take steps now to limit the spread of the virus in prisons, jails, and detention centers. But the time to act for the health of those incarcerated, and for the broader community, is now.