October 26, 2020 Feature

Defense Attorneys Are the Best Line of Defense Against the COVID-19 Pandemic for Incarcerated People

Chiquisha R. Robinson
If their COVID-19 positive incarcerated clients are worsening, attorneys should advocate for an immediate transfer to a hospital.

If their COVID-19 positive incarcerated clients are worsening, attorneys should advocate for an immediate transfer to a hospital.

Noah Berger

When the COVID-19 pandemic hit, our world changed in drastic and difficult ways. Businesses were shuttered, major world events were canceled, and habits of daily life were altered in order to flatten the curve. But inside America’s jails and prisons, where the deadly virus has spread like wildfire, more than 2.3 million incarcerated people remain at risk. Wendy Sawyer & Peter Wagner, Mass Incarceration: The Whole Pie 2020, Prison Pol’y Initiative (last visited Mar. 24, 2020). In June, three months into the pandemic, the four largest-known clusters of COVID-19 cases in the United States were all linked to correctional facilities—more than 1,200 cases were traced back to a single facility. Anna Flagg, Jails Are Coronavirus Hotbeds. How Many People Should Be Released to Slow the Spread?, FiveThirtyEight (last visited June 3, 2020); Coronavirus in the U.S.: Latest Map and Case Count, N.Y. Times, (last visited September 1, 2020) [hereinafter Coronavirus in the US].

As an attorney with the Public Defender Service for the District of Columbia (PDS)* who works with people during and after incarceration, I am all too familiar with the overcrowded and unhygienic conditions that incarcerated people in this country are forced to endure. But nothing prepared me for a worst-case scenario like this one. My colleagues and I were immediately inundated with requests from family members and defense attorneys asking: How do I get my loved one/client released? How do I get my loved one/client tested for the virus? What happens then? In the District of Columbia, the City Council acted quickly to enact a compassionate release provision and reforms to an unfair and outdated good time credit system as emergency legislation. We helped push forward a class-action lawsuit that compelled a federal judge to order the DC Department of Corrections to immediately improve conditions inside the DC jail to reduce the spread of COVID-19.

None of it was enough. This all became clear to me on a Saturday morning in May as we prepared to file a motion for the release of a 66-year-old man who had been receiving medical treatment after showing symptoms of COVID-19. Just as we were about to hit send on his motion for compassionate release, we received a phone call. Our client had died hours before—on a ventilator—alone.

I realized I had to do more for the thousands of people incarcerated here in DC, and the millions more across the country. This article is a result of my efforts to arm my fellow defense attorneys with the tools and resources necessary to protect our incarcerated clients from this deadly virus. Together with Dr. Jaimie Meyer, an associate professor of medicine at the Yale School of Medicine and an assistant clinical professor of nursing at Yale School of Nursing who has spent more than a decade working on infectious diseases in jails and prisons, I’ve developed what I hope will be a starting point for defense attorneys advocating for their clients in unparalleled circumstances.

Ultimately, it us up to all of us, as our incarcerated clients’ last line of defense, to think outside the box about what we can do to get our clients released. And if attempts for release are unsuccessful, we must stand up and demand protection, testing, and treatment. Above all, we must arm ourselves with information—about what is really happening in our local jail or prison, and about what is really happening with our clients. In these unprecedented and dire times, our work is not finished upon sentencing. In fact, that’s when our work really begins.

“It is up to the lawyers to advocate for their clients because people incarcerated inside these facilities are sitting ducks,” said Dr. Meyer. “They’re totally at the mercy of however their facility decides to implement their protocols. There is no universal protocol; there is no universal implementation plan. Even the most comprehensive protocols and policies that are informed by science are totally meaningless if not implemented, enforced, and continuously monitored.”

The COVID-19 pandemic also presents us with a rare opportunity to advocate for an end to mass incarceration. It is widely known that the United States locks more people behind bars than any other nation in the world. And because of persistent, systemic racism that remains a tangible force inside and outside our criminal justice system, Black men in America are not only six times more likely to be incarcerated than white men, but they are also four times more likely to die from COVID-19. Criminal Justice Facts, Sentencing Project, (last visited Sept. 1, 2020); Robert Booth & Caelainn Barr, Black People Four Times More Likely to Die from COVID-19, ONS Finds, The Guardian (last visited May 7, 2020).

American taxpayers spend $80 billion per year to sustain our incarceration system, yet our communities are being harmed by mass incarceration more than they are helped. There is a better way. The COVID-19 pandemic is forcing us to take a deeper look at how and why we put people behind bars. Reducing the size of our incarcerated population will not only help prevent the spread of this deadly virus, but it also will help us to rethink our nation’s obsession with punitive justice. It’s incumbent on us to use this opportunity to advocate for a better criminal justice system.

Advocating for Release

America’s correctional facilities face many challenges when it comes to preventing the spread of the COVID-19 virus. Social distancing is virtually impossible. Healthcare, testing, personal protective equipment, and proper sanitary equipment are all inadequately supplied. And incarcerated people are more likely to suffer from conditions such as hypertension, diabetes, and heart disease, all of which increase the likelihood they will suffer severe and possibly deadly complications from COVID-19. Peter Wagner & Emily Widro, Five Ways the Criminal Justice System Could Slow the Pandemic, Prison Pol’y Initiative (Mar. 27, 2020). Those inside prisons and jails, many of whom are held pre-trial, or for drug, property, or public order–related crimes and technical violations, have little means of protecting themselves from the spread of the virus. Sawyer & Wagner, supra.

The best option we have to reduce risk for our incarcerated clients, and our nation as a whole, is to lower the incarcerated population in our jails and prisons. According to a model from the ACLU, we can stop as many as 23,000 people in jail from dying from COVID-19—and 76,000 in the broader community—if we eliminate arrests for anything but the most serious offenses and double the rate of release for those already detained. Udi Ofer & Lucia Tian, New Model Shows Reducing Jail Population Will Lower COVID-19 Death Toll for All of Us, ACLU (Apr. 22, 2020); Crime in the United States 2018, Dep’t of Just., Crim. Just. Info. Servs. Div., (last visited Sept. 1, 2020).

This makes it essential that those of us who are advocating for our incarcerated clients challenge any and all in-custody placements with emergency arguments for release and encourage depopulating alternatives. Fortunately, we have many tools at our disposal.

Before trial, attorneys should prepare to request the immediate release of their clients by becoming familiar with jurisdictional rules relevant to COVID-19, statistical data such as local infection rates and fatality rates, and any pre-existing health conditions that might aggravate their clients’ risk of mortality if held in custody. People Who Are at Increased Risk for Severe Illness, Ctrs. for Disease Control & Prevention (last visited Sept. 1, 2020). This information can be used to argue for release at initial arraignment or, if that fails, at subsequent bond review and status hearings.

Several opportunities are also available for relief at sentencing and post-conviction. For example, many people have been released through compassionate release as an increasing number of courts continue to hold COVID-19’s threat of infection and its consequent ailments as “extraordinary and compelling” reasons for release. Coronavirus Disease 2019: Compassionate Release, FD.org (last visited Sept. 1, 2020).

The following chart outlines actions to take at different stages of litigation:

actions to take at different stages of litigation
PRE-TRIAL
SENTENCING
POST-CONVICTION
Bond/bail review request/motion for modification of custody Request release pending sentencing Motion for relief pending appeal
Request release pending trial
Request delayed imposition of sentence Sentence reduction motion
Request release with conditions
Request time served
Request release on parole
Request halfway house placement
Request probation
Request compassionate release
Request home confinement placement Request a suspended sentence Request for geriatric parole
Seek transfer to juvenile court for children charged as adults Request work release
Request for release to home confinement
Pre-trial litigation to dismiss case
Request jail on weekends
Request for release to a halfway house
    Request for a prison furlough
    Ensure/confirm good time credits
    Habeas petitions [provisional legal remedy: Custody “enlargement” (hospital, home, halfway house, other setting)]
    Class action petitions for injunctive and declaratory relief
    Clemency
    Commutation of sentence
    Executive pardon

Best Practices for Preventing the Spread and Managing Positive Cases of COVID-19 in Correctional Facilities

It is no secret that the innate environment and inherent limitations of our nation’s correctional facilities make it difficult to prevent and control the spread of any virus. COVID-19 in Correctional and Detention Facilities — United States, February–April 2020, Ctrs. For Disease Control & Prevention (May 15, 2020). Yet, strict adherence to the US Centers for Disease Control’s (CDC) prevention guidance on operational preparedness, communication, sanitation, hygiene, and separation and screening could reduce the high numbers of COVID-19 cases among those who are incarcerated, while limiting the spread to correctional staff and surrounding communities. In order to ensure the health and safety of their clients throughout the pandemic, defense attorneys should know what correctional facilities are doing to prevent the spread of COVID-19, to manage positive cases, and to ensure access to healthcare for both healthy and sick prisoners. This begins with an understanding of what appropriate measures should be taken by individual correctional facilities. Following is a discussion of the CDC’s guidelines, together with guidance provided by Dr. Meyer. Interim Guidance on Management of Coronavirus Disease 2019 (COVID-19) in Correctional and Detention Facilities, Ctrs. for Disease Control & Prevention (July 14, 2020) [hereinafter Interim Guidance].

Appropriate Protocol for Operational Preparedness and Communication

In coordination with public health partners, administrators at every correctional facility in the United States must establish a protocol for how they will prevent and respond to an outbreak of COVID-19. This protocol, based on guidance and recommendations by the CDC, must include procedures for social distancing, intensified institutional and personal hygiene practices, quarantining of suspected COVID-19 cases, management of COVID-19 cases, and continued communication with incarcerated people and staff. In addition, there must be contingency plans in place when situations, such as reduced staffing levels or PPE shortages, make it impossible to adhere to the established protocol. And policy constraints, such as medical copays and prohibitions on providing prisoners with alcohol-based hand sanitizers, should be relaxed during this public health emergency. It is also important to ensure that both prisoners and correctional facility staff are informed of any resulting changes made to their daily routine and responsibilities, and continually educated on the symptoms and health risks of COVID-19, as well as the measures they can take to reduce their risk of infection, and procedures for what to do if they are experiencing COVID-19-related symptoms.

As Dr. Meyer notes, unless your clients notice dramatic changes in their facilities, established protocols are likely not being followed. “You can’t protocol away a problem,” she said. “If facilities have the best written protocols in place, but they’re not being implemented, your clients will tell you.”

Best Practices for Sanitation and Hygiene

Even before COVID-19 cases are identified, every correctional facility in America should introduce intensified institutional sanitation and personal hygiene practices. This includes the cleaning of common areas several times a day, the disinfection of COVID-19-infected areas, and the allocation of adequate supplies and trained staff. At the same time, correctional facilities must provide no-cost access to liquid soap, running water (it is important to note that sinks in prisons are often metered—prisoners and staff must be able to wash their hands continuously for at least 20 seconds), hand drying materials, disinfectants (EPA-approved disinfectants properly prepared and mixed; see Pesticide Registration: List N: Disinfectants for Use Against SARS-CoV-2 (COVID-19), U.S. Env’t Prot. Agency (last visited Sept. 1, 2020), and tissues in order to enable incarcerated people to follow good hygiene practices such as hand washing and cleaning their cell. Most importantly, prisoners and correctional facility staff must be provided with the appropriate PPE based on their level of exposure and risk.

It is incumbent on every facility to provide incarcerated people and staff with updated, factual information about the COVID-19 pandemic—so they can understand why it’s important to take measures to protect themselves and those around them.

“In order to be protected from the virus, people need to buy in to behavioral changes to keep themselves safe and therefore promote the health and safety of the facility,” said Dr. Meyer. “They should be on board and trust that the facility is doing something to keep them healthy and safe. It is very scary for people to feel like they are being locked away and forgotten about.”

Proper Implementation of Social Distancing Policies and Screening Measures

To protect those inside correctional facilities from the virus coming in from the outside, there must be policies in place that restrict the number of people entering the facilities as well as screening procedures for essential staff and incoming prisoners. And despite the overcrowding and tightly shared living spaces endemic to correctional facilities, social distancing and quarantining of exposed individuals must be implemented in order to interrupt the transmission of the virus. Aleks Kojstura & Jenny Landon, Since You Asked: Is Social Distancing Possible Behind Bars?, Prison Pol’y Initiative (Apr. 3, 2020). For example, to meet social distancing standards, correctional facilities should limit the number of individuals congregating in communal areas, instruct incarcerated people and staff to maximize the physical distance between each other at all times, and allocate staff to enforce social distancing.

“More attorneys need to understand the layout of their clients’ facilities,” Dr. Meyer said. “It’s not just about how many people are in a cell, but how many are in a unit. What’s the setting? The dimensions of the cell? What’s the cafeteria situation? Physical space is really important to understand—social distancing is just not physically possible in many facilities.”

Fourteen-day quarantines must be implemented for incarcerated people or staff members who have been in close contact with suspected or confirmed COVID-19 cases. Quarantined prisoners should be screened twice daily for symptoms and moved to medical isolation if they show symptoms. It is critical that COVID-19 correctional policy and management inside of facilities align with CDC guidelines as recommendations are ever-changing. See Interim Guidance.

Ensuring Widespread Access to Testing

In an ideal world, every person in every correctional facility in the nation would be tested and retested. However, many facilities are currently only testing people with COVID-19 symptoms, or only those with fevers, according to Dr. Meyer. With data showing that approximately 35 percent of COVID-19 cases are asymptomatic but still capable of transmitting the disease, this is insufficient. In addition, many incarcerated people are afraid to report symptoms for fear of being placed in medical isolation.

“Clients are often reluctant to report symptoms because medical isolation looks a lot like disciplinary segregation,” said Dr. Meyer. “They might, however, tell their attorneys. Attorneys need to know the signs and symptoms of COVID-19 in case their clients have these symptoms.” Symptoms of Coronavirus, Ctrs. for Disease Control & Prevention (last visited Sept. 1, 2020).

Medical Isolation and Comprehensive Care for Positive COVID-19 Patients

When a prisoner tests positive for COVID-19, he or she should be placed under medical isolation. Interim Guidance, supra. Ideally, each COVID-positive incarcerated person would have his or her own individual space separate from both susceptible and infected prisoners. Realistically, COVID-positive people can be isolated together and cohorted. Isolation for COVID-positive people is important for both sick and healthy populations within the prison or jail. Those who are sick can be monitored more effectively if they are removed from the general population, while those who are healthy are less likely to contract COVID-19 from a sick person. Once placed in medical isolation, COVID-19 patients should receive enhanced medical care and observation from both nurses and advanced practitioners who check their temperature and oxygen levels at least once a day, according to Dr. Meyer.

If a person is symptomatic and is awaiting the results of his or her COVID-19 test, that individual should be regarded as a person under investigation (PUI). According to Dr. Meyer, each facility has its own guidelines about how to treat PUIs. For example, some facilities institute cell restrictions for PUIs, while others move them immediately to medical isolation.

Many incarcerated people with COVID-19, or PUIs, also have other medical conditions. It is absolutely crucial that these conditions continue to be treated. For example, a diabetic person in medical isolation for COVID-19 will still need his or her insulin. Attorneys should request their clients’ medical records as soon as possible—ideally before they become sick—in order to understand the danger posed to their client by COVID-19 and advocate for the continued treatment of underlying conditions.

“These conditions by themselves require intensive management,” said Dr. Meyer. “If left untreated, they can exacerbate COVID-19 and lead to worse outcomes.”

It is vitally important to ensure that medical isolation is not punitive. Incarcerated clients who fear medical isolation will be less likely to report their symptoms. People who are incarcerated during this grave public health crisis are already dealing with unimaginable anxiety. If they’re placed in medical isolation, they should not also be burdened with concerns about whether or not they will have access to personal calls, cleaning supplies, showers, clean clothes, or unmonitored legal calls.

Effective Monitoring and Hospitalization for Positive COVID-19 Patients

Approximately 45 percent of all people with COVID-19 cases exhibit mild symptoms, similar to the common flu, which do not require hospitalization or advanced treatment. Clients in medical isolation with mild symptoms must receive treatment to alleviate their suffering. Some facilities have refrained from administering Tylenol to COVID-19 patients because they are concerned it might mask their fevers, according to Dr. Meyer. Such withholding of treatment is unacceptable.

The situation is markedly different for the approximately 20 percent of patients who experience severe symptoms, including worsening shortness of breath, chest pains, or low oxygen levels. Any prisoner experiencing severe symptoms should be hospitalized as soon as possible, said Dr. Meyer.

“Unlike other infections, people with COVID-19 infections can take a turn for the worse in a matter of two days. That’s why monitoring is important,” Dr. Meyer said. “If their clients are worsening, attorneys should advocate for an immediate transfer to a hospital.”

However, many facilities have failed to transfer incarcerated people exhibiting severe symptoms to nearby hospitals, despite the fact that severe cases of COVID-19 are best handled in a hospital setting. Nearly all evidence-backed medications required for management of COVID-19 (dexamethasone, remdesivir, convalescent sera, etc., and more as they emerge) are administered through intravenous (IV) injection in the hospital and thus the only way people will have access to potentially life-saving medication. Early hospitalization for COVID-19 patients means access to twice-daily blood work, chest X-rays, CAT scans, experimental treatment, and the only FDA-approved medication for COVID-19, Remdesivir, according to Dr. Meyer. In addition, early intubation and steroid treatment for COVID-19 patients—available only at hospitals—has been shown to be beneficial, said Dr. Meyer. In short, really sick people, whether coming from jails, prisons, or the community, need to be hospitalized.

Advocating for Comprehensive Healthcare During and Beyond the COVID-19 Pandemic

Unfortunately, as we have seen in prisons and jails across the country, these preventative measures can be too little and too late. According to the Marshall Project, which began tracking the number of COVID-19 cases in prison in March, at least 40,656 people in prison had tested positive for COVID-19 on June 2, an 18 percent increase from six days before. The Marshall Project, A State-by-State Look at Coronovirus in Prisons (last visited Sept.1, 2020). In places like Ohio’s Marion Correctional Institute and Tennessee’s Trousdale Turner Correctional Center, thousands of prisoners who fell ill with COVID-19 required varying degrees of medical care. Coronavirus in the U.S., supra (“Hot spots: Counties with the highest number of recent cases per resident”).

Access to quality healthcare in the carceral system is a historically fraught issue (Beth Schwartzapfel, How Bad Is Prison Health Care? Depends on Who’s Watching, The Marshall Project (last visited Feb. 26, 2018), and incarcerated people often face barriers to healthcare that can best be eliminated through quality advocacy by their attorneys. Andrew P. Wilper et al., The Health and Health Care of US Prisoners: Results of a Nationwide Survey, 99 Am. J. Pub. Health 666 (2009). During the COVID-19 pandemic, prisons and jails should triage their sick calls to prioritize appointments for those who show symptoms of the virus. Interim Guidance, supra.

Having a client with COVID-19 symptoms seen quickly by a doctor is crucial to not only prevent the client’s condition from deteriorating, but also to stop further spread of the virus. However, according to Dr. Meyer, some facilities have restricted access to sick call slips, or delayed processing—possibly because already limited healthcare resources are now overburdened. However, the very fact that facilities are limiting access to healthcare resources—and are thus unable to provide proper care for the incarcerated who are depending on them—is a key argument for compassionate release.

“Healthcare resources are already spread thin; COVID-19 can compound existing issues in the carceral healthcare system,” said Dr. Meyer. “Attorneys need to stay on the ball here.”

Conclusion

The recommendations outlined in this column are not all-inclusive. Instead, they are meant to serve as a starting point for defense attorneys working to protect their clients’ lives during the COVID-19 pandemic. Lawyering during these unprecedented times requires creativity, empathy, and perseverance. Attorneys should feel empowered to find new ways to advocate for their clients and use these recommendations as a foundation for their efforts. In addition, attorneys should consider using this pandemic as an opportunity to advocate for criminal justice reform and an end to mass incarceration. This public health crisis has laid bare just how dangerous—and ineffective—it is to lock up millions of people and throw away the key. As their last line of defense, it is our duty to advocate for our incarcerated clients. During this pandemic and beyond, we need to speak out and stand up for reforms such as second-look sentencing, an end to three strikes laws and mandatory minimums, expanding use of alternatives to detention, and more to ensure a better future for our clients and their communities.

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Chiquisha R. Robinson is a deputy chief at the Public Defender Service for the District of Columbia. She manages the Prisoner and Reentry Legal Services program in the Community Defender Division, which provides legal representation, monitors conditions of confinement, and assists incarcerated people to make a successful transition back into the community. 

 

* The agency is cited for identification purposes only. The views expressed in this article are those of the author and do not necessarily reflect the policy or position of PDS.