12 May 2020
This is the second in a series by USSC Non-Resident Fellow Lesley Russell on why the impact of COVID-19 is worse on certain groups. Read the first instalment, on the impact on racial minorities and First Nations communities, here.
Coronavirus has spread rapidly in prisons across the world, where people are locked up, not locked down. Ubiquitous overcrowding means people are unable to self-isolate, provided with little in the way of protective resources and have inadequate access to healthcare services. Many of these people are medically vulnerable as a consequence of lifelong difficulties accessing healthcare, mental health and substance abuse problems, and unhealthy prison conditions.
This has been the case from the beginning. On 25 February it was reported that 555 inmates in five of China’s prisons were infected and the numbers almost certainly have continued to rise.
Prisoner rebellions have broken out to call attention to the problems of tackling coronavirus infections in many places in Latin America where prisons are notoriously overcrowded and unruly. One report, accompanied by horrific photos, said that spreading diseases was “threatening to turn them into infernos”. Elsewhere countries like Iran and Turkey have released tens of thousands of prisoners and pardoned many others amid fears of the impact of coronavirus in prisons.
We will probably never know the extent to which the coronavirus has penetrated the world's prisons and detention centres and testing capacity is constrained, data reporting is poor and inmates are rarely a priority.
In Australia and the United States coronavirus in prisons poses an additional threat to racial minorities and First Nations people who are significantly over-represented in incarcerated populations and at increased risk from coronavirus infection and death.
International human rights activists have called out to address this threat which is already a serious problem and potentially catastrophic.
How have Australia and the United States responded?
In the United States, the criminal justice system is estimated to hold nearly 2.3 million people in:
The Marshall Project has been tracking the spread of coronavirus in US prisons among inmates and staff. The first cases of COVID-19 diagnosed in prisoners were reported in Georgia and Massachusetts on 20 March 2020. This was two months after the first reported case in the country, on a day when the nation reported 4,581 new cases and 47 additional deaths, and states had begun issuing orders for people to self-isolate. The first prisoner death came later that week, on 26 March, in Lee State Prison in Georgia, now a hotspot for the disease.
Prison and public health officials paid insufficient attention to the need to protect both prison inmates and employees. As of 6 May 2020, the Marshall Project reported 20,119 cases of coronavirus infection and 304 deaths among prisoners. The UCLA Law COVID-19 Behind Bars Data Project keeps a more up-to-date and detailed set of figures which show that, as of 11 May, there were 25,014 cases among inmates and 340 deaths and 8,559 cases among staff with 35 deaths. These data must be viewed as snapshots in time in what is a fast-changing situation.
The prison infection rate now eclipses that of the general population and these figures are almost certainly an under-count. There are major gaps in information about testing in prisons; the Marshall Project states that the Federal Bureau of Prisons and 15 state systems are not releasing any information about testing and many other state systems have very low testing rates.
To a considerable degree, the growth in coronavirus cases in the last several weeks is due to a small number of states (Ohio, Tennessee, Arkansas, Michigan and North Carolina) which have begun aggressive testing of nearly everyone at prisons. But while on 22 April Ohio had tested nearly 5,000 people in its state prisons, Arizona, which has a similar prison population, had tested just 172 people.
Therefore, it is likely there are significant numbers of people infected that are untested and therefore unseen and unknown. A 20 March article in the New York Times stated: “a storm is coming”. That storm has hit. Modelling done for the American Civil Liberties Union estimates that deaths in prison could add another 100,000 to the United States coronavirus death toll.
At the end of April, eight of the top ten coronavirus hotspots in the United States were prisons and jails – the other two were the Smithfield Food meat processing facility in South Dakota and the USS Theodore Roosevelt, currently in Guam. The largest COVID-19 cluster in the country is at Marion Correctional Institution in Marion, Ohio, where there are 2,197 infected inmates — more than 80 per cent of the prison's population. Other hotspots include the Pickaway Correctional Institution in Ohio (1,629 cases), the Cook County jail in Illinois (940 cases), the Cummins Unit prison in Arkansas (911 cases) and the Lakeland Correctional facility in Michigan (816 cases).
Last month, Rikers Island correctional facility, the nation’s second-largest jail complex with 5,300 inmates, was among the worst infected. Officials announced Rikers’ first cases of coronavirus on 18 March and from there the number of infections ballooned until the virus infecting people on Rikers outpaced New York sevenfold. The first inmate death was reported on 6 April but there does not appear to be any publicly available count of current deaths. The facility’s chief physician has described the situation at Rikers as “a public health disaster unfolding before our eyes.”
Preventing the spread of coronavirus in American prisons and jails is an incredibly challenging task for several reasons. The prison staff are in close contact with inmates and move backwards and forwards between their workplaces and the communities where they live. There is also an enormous churn of inmates in and out of these facilities — the average time in jail is 25 days — and many people come into the facilities already infected. Correctional facilities are dangerously overcrowded. According to a report by the Justice Department, the inmate population in federal prisons exceeds the rated capacity by 12 to 19 per cent. Prisoners often sleep in bunk beds in large dormitories. There are numerous reports that inmates and staff do not have sufficient soap, cleaning products and personal protection equipment, like masks. Prison factories around the United States have stayed open even as the coronavirus has spread despite the fact that prison healthcare facilities are ill-equipped and under-staffed. Additionally, there is a significant cohort of older and sicker inmates with chronic conditions.
Australia is now in a situation where nationally there are very few new coronavirus infections reported each day and the level of testing is such that there are reasonable assurances that few coronavirus cases are escaping detection. However, precautions are required to prevent a resurgence or an importation of infections.
Australian prisons are considered to be at high risk for coronavirus outbreaks. They are overcrowded, under-resourced and hygiene standards are poor. Prison authorities in New South Wales have reported shortages of protective equipment. As many as 50 per cent of prisoners have some level of physical or mental disability.
There is little available data about what is happening in Australian prisons — a disconcerting scenario. An article in The Guardian outlined some measures taken by the individual states and territories, all of which have acted to limit prison visits. The South Australian government conducted emergency scenario planning on how to manage a potential outbreak in its prisons. Queensland and Western Australia announced special task forces to manage the threat and Queensland has instituted a 14-day quarantine for new prisoners.
There has been some testing in some prisons but the results are not known. In the last week of March, Long Bay prison in Sydney went into lockdown when two prison staff tested positive for coronavirus and there have been unconfirmed reports of infections in prisons in several other Australian jurisdictions.
The United States and Australia are not alone in delinquent protection of prisons from coronavirus. Correctional Services Canada stated in early March that it was adopting an existing flu-outbreak plan in preparation for outbreaks of coronavirus. At that point, there were no confirmed cases of COVID-19 in CSC institutions. However, both state and federal prison systems have been slow to act to reduce the jailed population and now there are coronavirus infections among both prisoners and staff.
Canadian media reported on 17 April that 55 prisoners at the medium-security Mission Institution in British Columbia (capacity listed as 216) had tested positive for coronavirus and one had died. Of 68 prisoners in isolation, 21 were Indigenous. The outbreak at the Mission Institution is the largest in any Canadian prison. The chairman of the British Columbia First Nations Justice Council has expressed community concerns that the outbreak was not being seriously addressed and has demanded proactive government responses.
Minority and First Nations people are hit doubly hard by this crisis — they are over-represented among those incarcerated and prisons are coronavirus hotspots.
Much of the data about incarceration by race/ethnicity comes from the 2010 census, so it is difficult to get an accurate, up-to-date picture. Additional information is available from the Bureau of Justice Statistics’ National Prisoner Statistics series.
The racial and ethnic makeup of American prisons looks substantially different from the demographics of the nation as a whole. In 2017, African Americans were 12 per cent of the adult population but 33 per cent of the sentenced prison population. Hispanics represented 16 per cent of the adult population but accounted for 23 per cent of inmates. The imprisonment rate (the number of prisoners per 100,000 population) for African Americans in 2017 was 1,549, nearly six times the imprisonment rate of 272 for white Americans, and nearly double the rate of 823 for Hispanics.
It is shocking that the statement, “There’s more African American males in the penal system right now than there were (enslaved) at the height of slavery” has been found to be substantially true.
The Prison Policy Initiative has compiled data on American Indian and Alaska Native incarceration rates from several sources. These show that the total incarceration rate is more than double that of white Americans and in states with large First Nations populations, such as North Dakota, incarceration rates can be up to seven times higher. Nationally, First Nations youth are approximately three times more likely to be confined than white youth.
The situation is no better in Australia, where Aboriginal and Torres Strait Islander people make up just two per cent of the population but more than a quarter of the nation's prison population. The extent of the over-representation varies by state and territory; in the Northern Territory, Indigenous Australians are 30 per cent of the population but make up 84 per cent of the prison population. In Victoria, where Indigenous Australians are just 1 per cent of the population, they are 8 per cent of the prison population.
The total number of prisoners in Australia has skyrocketed over the past decade and much of that growth is a result of higher rates of incarceration of Aboriginal people, particularly women, who are more likely than non-Indigenous women to be arrested for public order offences and other minor crimes. Australian governments have criminalised a range of behaviours — including rough sleeping, begging, failure to pay fines, and public drunkenness — which disproportionately affect those living in poverty and thus many Indigenous Australians.
Worse, because government and prison authorities too often fail to follow their own procedures and provide appropriate medical care and representation, the rates of Indigenous Australians dying in custody are rising. At least 424 people have died since the Royal Commission into Aboriginal Deaths in Custody handed down its report with recommendations for action in 1991.
The over-representation of minorities and First Nations peoples in prisons and jails are found elsewhere in comparable nations. More than 30 per cent of inmates in Canadian prisons are First Nations people, even though they comprise only five per cent of the country’s population. In Britain, people from black, Asian and minority ethnic (BAME) backgrounds constitute only 14 per cent of the general population but make up 25 per cent of the prison population. Fifty-one per cent of youth in young offender institutions are BAME males.
One leading criminal justice organisation has said “Prison systems globally were at crisis point before the coronavirus pandemic. Now prisons across the world are ticking time bombs set to be devastated by this virus because of overcrowding, lack of basic healthcare, limited access to clean water … and inhumane living conditions.”
Advice from human rights organisations and United Nations bodies such as the World Health Organization and the High Commissioner for Human Rights is clear: the risks to prisoners and staff from coronavirus is immense and there is no time to lose. The World Health Organization’s Europe branch has published interim guidance on how to deal with the coronavirus disease (COVID-19) in prisons and other places of detention.
The UN Permanent Forum for Indigenous Issues has urged member states and the international community to include the specific needs and priorities of Indigenous peoples when addressing the coronavirus pandemic.
On 26 March, Attorney General William Barr directed the Federal Bureau of Prisons to release eligible nonviolent inmates from federal correctional institutions in Ohio, California and Louisiana to home confinement because of the threat the disease posed to vulnerable prisoners. Such moves also address the overcrowding in prisons.
Barr expanded the order on 3 April — when it was obvious coronavirus was erupting in prisons — by using the authority granted to him under the Coronavirus Aid, Relief and Economic Security Act. He ordered officials running federal prisons to “immediately maximize” the release of prisoners to home confinement, urging them to focus on the most medically vulnerable in facilities with COVID-19 deaths.
The criteria in Barr’s directives — prioritising prisoners housed in low and minimum security facilities and considering whether a prisoner would face a higher risk of infection if released to home confinement — will tend to favour the release for white-collar prisoners to a greater degree than others.
Almost all the states have also recognised some form of compassionate release generally covering elderly, sick prisoners, those whose term is almost up, and those incarcerated for minor offences. The most aggressive action has been taken in Colorado where the population of the state’s jails is now 31 per cent less than it was in January.
Release into the community during pandemic conditions that prevail in some parts of the United States has been traumatic for some and support systems are lacking. For those who must remain in confinement, the conditions are reported as chaotic and stressful. Inmates in lockdown to prevent the spread don’t get exercise, don’t get fresh air and often don’t get hot meals.
The American Civil Liberties Union is pushing for reductions in custodial arrests for minor offences, estimating this would save 12,000 lives in prison facilities and 47,00 lives in the community.
Australia has no federal prisons, which perhaps is some justification for the lack of action from the National Cabinet on coronavirus and prisons — so it is up to the states to take action.
The Human Rights Law Centre and the Fitzroy Legal Service have called for all Australian governments to reduce the number of people in prisons by granting early release to those nearing the end of their sentence, granting parole to those convicted of low-level offences who pose a low risk to the community if released, allowing people on remand to more easily access bail, and granting leave to those most at risk of COVID-19, including people with underlying health conditions. They have also highlighted the need to ensure these people have safe accommodation in the community.
More than 400 academics, organisations and criminal justice experts, in an open letter to Australian governments, called for "unprecedented" action to immediately release prisoners where it is safe to do so to avoid deaths from coronavirus in custody. The release of Indigenous prisoners, especially those older than 50 years of age, was identified as a top priority due to their increased vulnerability to the virus.
New South Wales was the first state to introduce legislation enabling certain inmates to be released to relieve the overcrowding in the prison population of 14,000 and to control the spread of coronavirus. Release will amount to early parole with conditions imposed, which could include home detention and electronic monitoring. This legislation was passed on 25 March though it is unknown if any prisoners have yet been released under its provisions.
The Northern Territory corrections commissioner announced that he intended to release up to 60 low-risk prisoners, but again, it is not clear if this has happened yet. There are concerns that the releases — determined by risk assessment — will be culturally biased. Remote communities are closed to visitors and no-one can return until after a 14-day isolation period, which will be difficult for those prisoners who do not have accommodation options outside of their communities.
In a recent decision with substantial consequences, the Supreme Court of Victoria found that the Victorian Government breached its duty to take reasonable care for the health of people behind bars during the coronavirus pandemic and that the Government must act compatibly with the Victorian Charter of Human Rights. The case was brought on behalf of a person in Port Phillip Prison with acute health needs and argued that people in prison are “sitting ducks” for COVID-19. The court ordered that a risk assessment examining the COVID-19-related risks to people in prison be carried out at Port Phillip Prison and that any recommendations made as a result of that assessment should be implemented.
Michelle Bachelet, the UN High Commissioner for Human Rights states that, during a global pandemic, “the consequences of neglecting [the prison population] are potentially catastrophic.” Here in Australia, Dr Hannah McGlade, human rights lawyer and a member of the UN Permanent Forum for Indigenous Issues said, “Prison is the most unsafe place that Aboriginal people can be in a pandemic.”
It may also be time for broader ideas for justice reforms. In a timely call for action during a Melbourne visit in April, American prison reform activist Dr Baz Dreisinger said Australia must join other countries around the world in "radically rethinking" its dependence on prisons and start a serious conversation acknowledging the systemic racism within the justice system and the subsequent over-incarceration of Indigenous people for "petty offences". In doing so she highlighted that mass incarceration disproportionately impacts racial minority groups and creates “a new form of racial segregation.” She stated, “Almost every country has its 'other' [group that is over-represented in the justice system], and has over-incarcerated that other group in almost identical ways — that is by criminalising them, usually through the use of petty offences.”
Until such radical rethinking is adopted, it is imperative that coronavirus infections in prisons and jails are accepted as a public health problem for everyone. It is not just staff and inmates that are affected by infections by the incarcerated — it is also their many contacts and ties in the broader community as well.