The right to health is not negated by a person’s incarceration

By: Kristina Roth, Senior Program Officer Criminal Justice Program

In this moment of a global pandemic, governments around the world are calling for residents to distance themselves from one another, wash their hands, and remain in place. These simple tools of prevention are not easily available to the 2.3 million people living behind bars in the United States, in local jails, state and federal prisons, immigration detention facilities, Indian country jails and military prisons. Right now, as difficult as it is for many of us to find what we need from grocery stores to stay home and be well, imagine the challenge of getting soap, an item that may need to be purchased through the prison commissary or that the best chance at social distancing at bedtime is sleeping head to toe just three feet away from others in a room. While we look to health experts for guidance to determine what we can do to stop the spread of COVID-19 and find a vaccine, it doesn’t take a degree in health or science to see that people living in confined spaces with inadequate access to basic hygienic tools and the ability to effectively distance or quarantine themselves are at greater risk of contracting this potentially fatal disease.

New York City has seen more positive cases of COVID-19, and unfortunately deaths, than anywhere else in the US. The week of March 30, Rikers Island jail complex within New York City had an infection rate seven times the rest of the nation’s epicenter. On April 5 it was reported that 273 detainees, 321 corrections personnel and 53 jail health staffers have tested positive for coronavirus at Rikers Island. The following day, April 6, COVID-19 claimed its first casualty in the facility, Michael Tyson, a 53-year-old man detained since February for a technical parole violation. While New York Governor Andrew Cuomo has said he would free up to 400 people from the city’s prisons for low level technical parole violations, this did not happen quickly enough for Michael Tyson. He may be the first COVID-19 death of a person imprisoned at Rikers Island but unless officials move more swiftly to release as many people as possible, there will be more unnecessary deaths.

Close living conditions and an inability to effectively quarantine or avoid potentially infected people, coupled with populations and people with pre-existing conditions identified by the World Health Organization as more susceptible to the virus, make incarcerated people particularly vulnerable to a contagious pathogen like Coronavirus. Exacerbating the problem, prisons and jails generally are notoriously deficient in providing access to health care for incarcerated populations. States have an obligation to guarantee the right to health of all people deprived of their liberty, and to ensure that they have access to the same standards of health care as those available in wider society. Not providing appropriate medical treatment to prisoners that could reasonably be expected of the state may amount to ill treatment. It may not be clear the virus discriminates beyond these conditions identified by health experts, but we should not pretend that in prisons, jails, and detention facilities there is an overrepresentation of black and brown people whose right to health is not negated by their incarceration. Our response to curbing the spread of COVID-19 should account for this, efforts that do not will most certainly leave a discriminatory impact.

State and federal authorities are starting to plan the release of some people from prisons and jails like those with underlying health conditions, as well as those in pretrial detention, within one year of parole, close to completion of serving their sentence and people serving time for low level offences. However, this is the exception not the rule. There is so much more to be done to prevent transmission and help save the lives of people incarcerated in the U.S. right now.

We urge governors across the United States to exercise their executive authority and release people in pre-trial detention, those that have already served a portion of their prison sentence, who no longer pose a threat to public safety and early or conditional release of prisoners at risk in the event of contagion, including older people and those suffering from underlying medical conditions or with weak immune systems. States should consider if the present situation qualifies prisoners for parole, early release, or other alternative non-custodial measures, for instance if they are at risk or if they are serving sentences for low-level and non-violent offenses. For those who cannot be released, officials must take all appropriate measures to prevent the spread of COVID-19 within detention facilities, and in the event of its spread, ensure that people deprived of their liberty can access specialized medical care without complications. In addition, officials should allocate specific funds and resources exclusively to guarantee the implementation of health and hygiene measures within prisons and jails.

We encourage readers to uplift this call for release of people in prisons, jails, and detention facilities by writing a quick letter to the editor in your local newspaper. Check out our guide for writers here and let us know if you submitted something, by emailing it to cj@aiusa.org

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