Abstract

Excerpted From: Almasa Talovic, Covid-19 Within the Mass Incarceration System, 71 Syracuse Law Review 101 (2021) (75 Footnotes) (Full Document)

“I understand that we are inmates and that we all made some horrible decisions, but at the end of the day we are still humans who need to be treated as such,” pleads Marsha Scaggs, a fifty-six year old woman who is currently incarcerated at SCI Cambridge Springs in Pennsylvania while a deadly virus runs rampant around the world. The COVID-19 pandemic has exposed some of the most blatant shortcomings within our system of safety nets and social support in today's society and has highlighted that our most vulnerable have historically been the populations expected to pay the greatest price. Prisons and the people within them, unsurprisingly, have been no exception to this phenomenon.

The U.S. criminal legal system has more people locked away per capita than any other nation, leading at 2.3 million people total at the early stages of the pandemic in March of 2020. This reflects an increase of 700% in the number of people who are incarcerated since 1970, aided by a multitude of policies at the state and federal level along with actions at an individual level. This increase has not been felt equally among groups. While the wars on crime and drugs have often been cited as the reasons for this increase, it is impossible to pinpoint one piece of legislation that is solely to blame, and doing so would irresponsibly deny the racist, classist, and ableist systems that have existed for centuries that have set the framework for mass incarceration to prosper. According to the American Civil Liberties Union, one out of every three Black boys and one out of six Latino boys born today can expect to go to prison in their lifetime; this is compared to one out of every seventeen White boys. A larger percentage of the United States's Black population is imprisoned today compared to South Africa's Black population during apartheid. Further, poverty is a risk factor for arrest, as three out of five people in jail are presumed innocent and are simply waiting for trial because they cannot afford bail. People in prison are disproportionately poor and are more likely to be poor upon release, due to past legal fees, loss of wealth during prison, and systemic barriers in obtaining housing and employment. Other risk factors for incarceration include mental illness, drug use, and illiteracy.

Because of these structural pieces that disproportionately expose certain individuals to arrest, people who are incarcerated often have unique or additional healthcare needs compared to the rest of the population. For many individuals, the prison system becomes the first time they even receive long term healthcare. Between 2011 and 2012, forty percent of people who were incarcerated reported having a chronic condition, a rate that is higher than the general population. Twenty percent also report having an infectious disease compared to five percent of the general population. Additionally, more than half of the people who are incarcerated fit the criteria for a substance use disorder, and depression and other psychiatric conditions are four to eight times more common in people who are incarcerated than the general public. Life in prison can additionally exacerbate preexisting conditions. One person who is incarcerated states, “I've always said if you serve six months bodily, you're doing twelve months mentally, because your mind works twice as fast in here ... and I don't think that's good.” They describe the atmosphere as tense, disempowering, and boring; these harsh conditions can worsen a person's mental health state. Incarceration serves as both an acute and chronic stressor and can strain relationships and social support systems, which are associated with poor cardiovascular and immune health. In addition, close quarters and unprotected sex allow for infections to spread within the prison, such as tuberculosis, hepatitis C, HIV/AIDS and other sexually transmitted infections. In fact, it has been argued that each year in prison takes two years off of one's lifespan, and that mass incarceration is the reason why the overall United States life expectancy has decreased by five years.

Another important factor to consider is that the prison population has been aging. The percentage of people in prison who are above the age of fifty-five has tripled since 2000, making up twelve percent in 2020. Harsher sentencing is greatly the cause for this, including three strike laws, truth in sentencing, and mandatory minimums for crimes. In 2013, six out of ten people above the age of fifty-five had aged into that cohort from serving longer sentences; this is further aided by an increase in admissions from 2003 to 2013 for those fifty-five and older as well. In addition, it appears that the same factors that contribute to poor health in prison can expedite aging. A study showed that a cohort of older men in the community, with an average age of seventy-two years old, had similar rates of high cholesterol, hypertension, poor vision, and arthritis, when compared to a group of men who were incarcerated with an average age of just fifty-three years old. Further, the majority of men in the community reported no barriers to health, with the most common barrier being lack of interest, while only 19.6% of men in the incarcerated group reported no barriers of health, with their most common barrier being lack of knowledge regarding programs or screenings that are available. These findings suggest that prison systems can age an individual upwards of fifteen years and leave them searching for healthcare in the midst of it.

In 1976, a landmark case, Estelle v. Gamble, established that all people who are incarcerated must have timely access to healthcare and that indifference to care is a violation of the Eighth Amendment. However, this does not reflect the quality of healthcare in prison systems, nor is it uniform across the country. Corizon, one of the nation's largest for-profit prison healthcare providers, has been the subject of thousands of lawsuits, ranging from staff shortages to neglect regarding treatable illnesses. In 2015, New York City Mayor Bill DeBlasio chose not to renew the contract with Corizon at Riker's Island after accusations of them playing a role in up to a dozen deaths and three accounts of employees bringing contraband into Riker's. Access and quality of healthcare go beyond Corizon, however. Despite the majority of people in prison meeting the requirements for having a substance use disorder, only eleven percent receive treatment, most often focused on education and peer support despite evidence that medication assisted treatment is more effective. Many states have also been sued over the quality of their healthcare and for failing to meet screening and treatment guidelines. The high cost of copays can serve as an additional barrier in some states, such as in West Virginia where it would take a month to earn the six dollars needed to visit the doctor. In addition, Medicare and Medicaid recipients do not have access to their benefits while incarcerated or while unable to pay their bail.

Thus, it should come as no surprise that the COVID-19 pandemic has traveled greatly through the prison system in America. As of December of 2020, one in five people who are incarcerated had tested positive for SARS-CoV-2, compared to one in twenty people in the general public. Some experts believe this number is underreported due to the lack of testing available or conducted in prison systems. Homer Venters, the previous Chief Medical Officer for Riker's Island, traveled around the country conducting COVID-19 inspections in prisons. He states, “I still encounter prisons and jails where, when people get sick, not only are they not tested but they don't receive care. So they get much sicker than they need to be.” This was especially true early in the pandemic when tests were scarcer and some places, like Oakdale Federal Correctional Center in Louisiana, decided to stop testing people with symptoms and just assume instead that they are positive. This system, however, misses asymptomatic carriers and can mask the extent of the spread. In mid-April, Ohio began mass testing within its prison system and found a shocking positivity rate of seventy-five percent within Marion Correctional Institute. Further, a large number of states do not require staff to be tested, even though the Centers for Disease Control and Prevention (CDC) recommends testing among staff because they can be a large nidus of infection. Even with this lack of testing, over 379,000 people who are incarcerated and over 91,000 staff members in the prison system have tested positive for SARS-CoV-2 as of February 2021.

[. . .]

According to international law, the state is required to ensure the health of people who are incarcerated and to not discriminate based on legal status. The response of the United States to the COVID-19 pandemic in prisons has been slow and inadequate and over 2000 people have lost their lives as a result of this inadequacy. This has taught us lessons about the vulnerability of our society and these lessons need to be translated into the criminal legal system. Mass incarceration does not correlate well with falling crime levels or safety and leads to collateral damage in our society as returning citizens struggle to return to their lives. According to the Vera Institute, if New York kept their incarceration rates at June of 2020 levels and amended rules regarding minimum staffing, they could save up to $638 million annually. This money could be invested in our communities, in sustainable housing, in education, and in public health instead of prisons. Currently, effort needs to be directed to protecting people who are incarcerated from contracting the deadly SARS-CoV-2 virus and aiding individuals who have been decarcerated in their return to society. Going forward, addressing the causes of mass incarceration will relieve some of the inequalities that continue to exist in this country and will allow for a society where we are not morally failing an entire group of vulnerable people at once.

M.D. Candidate, Class of 2022, SUNY Upstate Medical University; B.S. Cell and Molecular Biology, 2018, SUNY Binghamton University