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Excerpted From: Fred Rottnek, Covid-19, Doctors, and the “Realities of Prison Administration” Part I: The Realities of a Subject Matter Expert, 14 Saint Louis University Journal of Health Law & Policy 465 (2021) (97 Footnotes) (Full Document)


FredRottnekThe correctional setting exacerbates many challenges faced by individuals in society--health disparities, institutional racism, trauma and toxic stress, food insecurity, and health conditions made worse by lack of access to care. Likewise, COVID-19 has magnified historic problems in jails, prisons, and detention facilities. Scholars have turned a bright light on historic problems in correctional facilities made worse by the novel coronavirus (COVID-19). And, while few saw this pandemic coming, many who track conditions in correctional facilities were not surprised by the devasting toll it took on inmates, staff, and communities.

I became involved in the COVID-19 crisis within correctional facilities not as a scholar, but as a physician who has practiced primary care in detention facilities for over fifteen years. As a board-certified, faculty family physician, my goal has always been to help my patients optimize their health. This goal is a world away from the typical legal standard of care within detention facilities, which often amounts to something slightly better than cruel and unusual punishment. But I also know how jails and prisons function, how health care is delivered, and what challenges exist to provide needed services in an environment where safety and security are always prioritized. As COVID-19 descended upon the United States in the spring of 2020, I served as a subject matter expert and a court-appointed inspector of jails and prisons.

I have had the advantage of learning my way around a jail--the physical structures, the sound of a door locking behind me, the rhythm of patient movement, the supremacy of safety and security, and the delicate balance of optimizing the health, while minimizing the risk, of all the stakeholders involved. When COVID-19 promised to make isolation in cruise ship living quarters look, frankly, like a vacation, compared to conditions in a jail or prison, I knew I was someone who could assist in assessing risk and offering solutions to maximize safety during the pandemic.

My journey began with a local firm. Jack Waldron and Maureen Hanlon of ArchCity Defenders contacted me in the very early days of the pandemic in March 2020. They asked if I would work with them to lead a collaborative effort to advocate on behalf of incarcerated people during the COVID-19 pandemic. This early dive into available information started my regular habit of checking for information and updates from the Centers for Disease Control and Prevention (CDC), the Johns Hopkins Coronavirus Resource Center (JHU), the National Commission on Correctional Health Care (NCCHC), and the National Institute of Corrections (NIC). These resources shared declarations and public letters that had already been filed during the early days of the pandemic. These included letters to judges and administrators in Harris County, Texas, and Cook County, Illinois, as well as to the Illinois Department of Corrections.

Our product was a letter of advocacy to the Missouri Supreme Court on behalf of high-risk jail and prison inmates throughout the state of Missouri. The letter had sixteen cosignatories, including primary care and public health leaders in academic and community settings. The letter complement included additional advocacy from civil rights groups, law enforcement, and houses of worship.

The response from the Missouri Supreme Court was tepid.

Nevertheless, the letter was an opportunity to promote three recommendations that remained consistent throughout all my subsequent reviews and inspections: review for possible release any inmate/detainee who is at high-risk for COVID-19 infections, so that they at least have a chance to practice social distancing; maximize opportunities to practice social distancing within the facility; and follow evolving CDC guidelines regarding correctional institutions.

In early April 2020, I received a phone call from Thomas Harvey, one of the founders of ArchCity Defenders and now with the Advancement Project. Mr. Harvey was looking for an expert in correctional healthcare who could comment on plaintiffs' complaints, jail standards, and other relevant documents of the Miami-Dade Corrections and Rehabilitation Department. The Advancement Project was filing a Petition of Writ of Habeas Corpus and Complaint for Injunctive and Declaratory Release.

Co-counsel in this case were lawyers with the Civil Rights Corps. Those lawyers were also working with Still She Rises, out of Tulsa, Oklahoma, and they recommended me to provide similar services for a case with the Tulsa County Jail. So began the pattern of one counsel referring me to another to provide expert testimony on COVID-19 outbreaks involving jails and prisons, pre-trial detainees, imprisoned folks at the end of a long sentence, and surrounding communities.

At the time of this writing, I have submitted seven declarations--many with supplemental declarations--requesting that I comment and offer my opinion, based on my knowledge, professional medical experience, and expertise in correctional medicine, regarding whether the measures taken by a county jail in response to the COVID-19 outbreak have been minimally adequate to mitigate the spread of COVID-19 within the facility (See Table 1). I have also been asked to recommend any additional steps that the jails and prisons should take to ensure that they are following basic, well-accepted public health standards for the mitigation of COVID-19 in jails.

In these declarations, I have typically reviewed declarations of plaintiffs, institutional policy, procedures, communications, and strategies to address mitigation of the virus, and compared them to standards published by the CDC, the NCCHC, and the NIC.

In addition to these declarations, I have been appointed by the court to inspect five jails (See Table 2). Inspections varied greatly--not only in the physical environment, but also in the degree to which and when administrators took meaningful and sustained steps to mitigate the spread of COVID-19 within their facilities.

In the remainder of this article, I will describe my declarations, characteristics of high-risk inmates (i.e., inmates and detainees at high-risk for coronavirus infection and serious health sequelae), and recommendations for actions to mitigate spread based on CDC guidelines. Next, I will then I will turn to my inspections and my findings. I conclude with a discussion of why coronavirus could and should be a game changer in terms of incarceration practices in the United States, and how our current court structures are preventing real changes while thousands of people die every day.

[. . .]

The COVID-19 pandemic is a magnifier of flaws in U.S. housing, hygiene, and health practices in jails, prisons, and detention centers. However, it also magnifies flaws in our legal system for addressing and challenging these practices. I have been involved in a dozen suits in half as many months. None of the plaintiffs' lawyers have found success in judicial settings, suggesting that perhaps judicial settings are not the right venues to seek necessary changes.

Our model of litigation in the United States devalues science and professional contributions of subject matter experts to optimize outcomes. United States courtrooms are too often arenas of drama and conflict, and the goal of counsel is to discredit the professional and boots-on-the-ground experience of experts who can inform the judge and jury. My experience with Judge Chuang in the Maryland suit was rare, but welcome. I was treated as a valued contributor to the legal discussion. So, until our courtroom behaviors change, the courtroom may not be the most effective venue for the reform of corrections practices around housing, hygiene, and health.

The judicial branch has been relied on too often to change carceral conditions. We have experts, we need mandatory standards. We need legislation and executive leadership. The legislative branch and the executive branch need to step up and act responsibly regarding issues of health and hygiene behind bars. The COVID-19 pandemic is showing us the spread of an infectious disease behind bars can translate to spread of the disease among corrections staff and local communities. There are several pathways to improvement.

Currently, since jails and prisons are not considered licensed health care facilities, they have no mandatory accreditation standards. While meeting accreditation standards does not guarantee quality services, it does set a floor. There are two primary accrediting agencies in the United States for jails and prisons, the National Commission for Correctional Health Care and the American Correctional Association. While certification by either is not a guarantee of preventing the often-accepted legal floor of cruel and unusual punishment in a given facility, it provides expectations that a baseline of policies and services exist. There are also countless non-governmental organization standards and guidelines--such as those from the United Nations and the World Health Organization. U.S. legislation can build on these and other standards.

Moreover, many states have baseline requirements for their juvenile detention facilities. Juvenile detention facilities are essentially jails and prisons for children. States acknowledge the vulnerability of the facility inhabitants by setting standards. Why can we not provide similar protections for adults?

Almost 2.3 million individuals are incarcerated or detained in the United States. They are experiencing COVID-19 with the same blunt tools that teach them other life lessons. And there are also hundreds of thousands of people who staff and visit these facilities daily then return home to their communities. Standards around health, hygiene, and housing would mitigate risk of not only COVID-19, but also the next public health-threatening crisis.

I teach medical students primum non nocere, or “first do no harm.” I do not know the criminal justice equivalent of first do no harm. But when I see: soap and feminine hygiene products treated as a scarce commodity; mop buckets filled with filthy water; dirty and torn face masks; rust that is half-an-inch thick in patient showers; broken toilets full of feces; dozens of people screaming and banging on doors to get my attention; and Nutraloaf served as the only meal for days, I know it is time for the U.S. public and our elected officials to take the same tours I did.

I started this Article writing of the magnification of health disparities among people incarcerated in the United States. This was from an article I wrote almost ten years ago, Why Every Medical Student Should Go to Jail. I argued to fellow faculty members, “You'll likely find that when your students spend a little time behind bars, they'll open their eyes to a whole new world.”

In the companion piece to this Article, Chad Flanders discusses how district and appeals courts analyze COVID-19 litigation involving outbreaks in prisons. He argues that district judges have had their eyes opened to the poor conditions within corrections facilities. However, the judicial system by itself is not enough to reform prison administration. Now it is time for our legislative and executive branch leaders to experience a similar epiphany as the district courts. We cannot expect one branch of government to take all the heat. Rather, all three branches of government must take responsibility to reform the way the U.S. correctional system manages basic issues of health and hygiene.

Fred Rottnek, MD, MAHCM is a Professor and the Director of Community Medicine and the Program Director of the Addiction Medicine Fellowship at the Saint Louis University (SLU) School of Medicine.

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