April 15, 2020 Inside Vermont's Prison System

Attorney Fights for Older Inmates' Release Amid Coronavirus Outbreak

By Annie Manhardt
Older inmates are at greater risk of infection and poor outcomes

Older inmates are at greater risk of infection and poor outcomes

(The pdf for the issue in which this article appears is available for download Bifocal, Vol 41, Issue 5.)

As a prisoners’ rights attorney in Vermont, I watched with horror as the coronavirus pandemic wreaked havoc on carceral facilities throughout the nation. At the Rikers Island complex in New York, 319 current prisoners and 573 staff members had tested positive for COVID-19 as of April 12.[1] Over the course of two weeks at the Cook County Jail in Chicago, the number of confirmed coronavirus cases exploded from two to more than 350.[2] Six prisoners at a federal prison in Oakdale, Louisiana, have died from the virus.[3]

Overall, 2,818 federal inmates and 262 prison staff members tested positive for COVID-19 nationwide. At least 50 inmates have died; all staff members have recovered as of May 12, according to the Bureau of Prisons.

My incarcerated clients in Vermont were watching in horror, too. Vermont has the second oldest prison population in the country, meaning that many of the inmates are at higher risk for contracting and dying of COVID-19. This elder population makes up a large portion of my caseload, as I spent my first year after graduating law school in 2018 as a legal fellow providing representation exclusively to older adults in Vermont’s correctional system. As the pandemic intensified in March, my calls with clients became less about their open cases and more about their fear of catching the virus and dying behind bars. For a few weeks, I could reassure them that there were no known cases in Vermont prisons.

That reassuring fact is no longer valid.  The first staff member at Northwest State Correctional Facility in Swanton, Vermont, tested positive for COVID-19 on April 1. The second and third tested positive on April 6. On April 8, the news broke that a person incarcerated at the facility had been infected. Over the course of the next three days, facility-wide testing revealed a full-fledged outbreak: 32 of the 199 people incarcerated at the facility and 17 staff members tested positive for COVID-19.

Pleas for Early Release

Epidemiologists, public health experts, and advocates have suggested that decreasing the prison population is the most effective way to prevent explosive outbreaks in correctional facilities.[4] Fewer people means more space to socially distance and a greater ability to ration hygiene and cleaning products, medical supplies, and personal protective equipment to keep both prisoners and staff safe.

Many courts and public officials have subsequently released prisoners accordingly. In California, officials announced March 31 that it would grant early releases to 3,500 prisoners, 3% of its prison population, according to the Public Policy Institute of California. Elsewhere,  more than 100 inmates have been released from Boulder County Jail in Colorado following efforts from the district attorney’s office to reduce the jail population based on preexisting medical conditions and utilizing personal recognizance bonds as of April 4, according to the nonprofit Prison Policy Initiative, which is tracking infection rates and deaths. The Hawaii State Office of the Public Defender asked for the release of over 400 people detained in local jails on April 2. County jails in the Detroit, Michigan, area have released hundreds of people in April. In March, West Virginia jails have reduced their overall population by over 600 people. 

Challenges Accessing Housing and Benefits

Through bail review motions, petitions for sentence reconsideration, and other litigation and advocacy strategies, defense attorneys and civil rights lawyers are pushing for the same outcome in Vermont. However, for many of my older clients, planning for their release has been nearly impossible. Many transitional housing programs have temporarily suspended admissions. Social service agencies and non-profits, which are already strapped for resources, are struggling to keep up with the increased demand following the surge in unemployment.

While solutions like telehealth, online grocery shopping, and mail-order prescriptions are connecting people to the resources they need while enabling them to socially distance, a person who has been incarcerated for decades with little or no access to modern technology will not know how to navigate these. Older adults in prison do not receive Social Security benefits, so my eligible clients need to reactivate their benefits. With the closure of all Social Security offices, this process now requires either phone or Internet access—amenities that many newly-released people cannot easily access.

These pandemic-related obstacles have only exacerbated a problem that existed long before the coronavirus outbreak. It is especially difficult to find housing for formerly incarcerated elders, many of whom are unable to live alone. After years—sometimes decades—of living communally in prison, the transition to independent living can be jarring. Other formerly incarcerated elders may require full-time care due to physical or cognitive limitations. One 90-year-old veteran in Vermont gained the attention of the local media when he remained incarcerated on a misdemeanor charge for months because he had nowhere else to go.[5]

His situation is not unique. I have witnessed terminally ill clients turned away from nursing homes because of their criminal convictions. I have had clients fall victim to scams by people purporting to provide re-entry services. I know of one disabled veteran who spent his first winter as a free man in over a decade homeless on the streets of Vermont because he could not find a place to live. While securing housing is a major obstacle for many formerly incarcerated people regardless of age, the options are even more limited for those who require accessible or supportive housing.  For many of my clients, the age-related characteristics that make them excellent candidates for release from prison due to their low risk of recidivism are the very same characteristics that make coordinating their release so challenging.

Bottom Bunk Beds and Other Necessities

Prison life is harsh. Living in prison as an older adult is even more difficult. Unlike traditional long-term care facilities, prisons were not designed for older adults. It is well documented that prisons across the country fall short of basic accessibility standards,[6] and incarcerated people with disabilities may become victims of abuse and harassment.[7] It can be a struggle for older prisoners to receive simple accommodations such as being assigned a bottom bunk bed or getting audio and visual aids and mobility devices. Also, prisoners are often subjected to grossly inadequate medical care, particularly in systems with privatized prison healthcare.[8]

Moreover, the rigidity of prison life, which is enforced through strict rules and regulations, is usually unforgiving for people with cognitive and physical decline. These issues may prevent older inmates from following orders or adhering to the strict time limits imposed on activities such as dining and bathing. Because prison employees are rarely trained to work with older adults, they often misinterpret genuine confusion as insolence, and sincere requests for accommodation as attempts to manipulate the system.

The inability of prisons to provide care and accommodations for older adults is becoming increasingly pronounced as the prison population in the United States continues to age. Most studies categorize incarcerated people who are age 55-plus as “older adults” due to what’s called  “accelerated aging,” whereby people in prison tend to experience age-related health issues about 10 years earlier than their free world peers.[9]

Between 1999 and 2015, the number of people 55 and older incarcerated in state and federal prisons increased by 264 percent.[10] This was not simply a result of an increase in the overall prison population, as the proportion of incarcerated people aged 55 and older rose from 3 percent to 11 percent during this time period[11] Instead, the aging of the prison population is a result of harsh sentencing practices in the 1990s and early 2000s that have left many people incarcerated for decades as well as an increase in prison admissions among older adults.[12]  Since most currently incarcerated people will eventually be released, the increase in older adults behind bars will translate to an increased need for re-entry supports designed to meet their unique needs.

            A Call to Action

 In light of the current pandemic and the risk it poses to incarcerated elders, we cannot wait for older adults in prison to complete their sentences. There is greater urgency now than ever to advocate for early release. This means pushing for legislative reforms, such as presumptive parole, expansive compassionate release laws, and additional avenues for sentence reconsideration that will allow courts to reduce sentences at any time.

It is imperative that we also ensure that the people who benefit from these legislative changes will receive the re-entry supports they need. What I have found is that our existing re-entry support systems do not address the needs of older adults, and our existing elder support systems do not address the needs of formerly incarcerated people. This siloed approach to legal services has left so many currently and formerly incarcerated elders without anyone to advocate for them. To bridge this gap, we need to think creatively and collaboratively, to rely on one another’s expertise, and to widen our understanding of who our services are designed to reach.

Here's how re-entry service providers can help:

  • Identify older adults who are eligible for release and helping to connect them with relevant legal and social work services
  • Make materials accessible to those who have limited access to technology
  • Expand relationships with housing providers to include long-term care facilities, assisted living centers, and other group living environments appropriate for people who are unable to live alone

Here's how organizations providing support to elders in the community can help:

  • Direct outreach to older adults in prison
  • Provide training to re-entry service providers and prison staff about working with older adults
  • Develop state-specific re-entry guides with information about legal, financial, transportation, and other resources available to older adults in the community
  • Lobby for the inclusion of prisons as facilities subject to oversight by state Long-term Care Ombudsmen

[1] https://www1.nyc.gov/site/boc/covid-19.page

[2] https://www.nytimes.com/2020/04/08/us/coronavirus-cook-county-jail-chicago.html

[3] https://www.washingtonpost.com/national/inside-the-deadliest-federal-prison-the-seeping-coronavirus-creates-fear-and-danger/2020/04/09/deeceb6e-75b4-11ea-a9bd-9f8b593300d0_story.html

[4]  Josiah Rich et al., We Must Release Prisoners to Lessen the Spread of Coronavirus, THE WASHINGTON POST (March 17, 2020), https://www.washingtonpost.com/opinions/2020/03/17/we-must-releaseprisoners-lessen-spread-coronavirus/

Amanda Klonsky, An Epicenter of the Pandemic Will Be Jails and Prisons, if Inaction Continues, NY TIMES (March 16, 2020), https://www.nytimes.com/2020/03/16/opinion/coronavirus-injails.html

Matthew J. Akiyama, et al., Flattening the Curve for Incarcerated Populations — Covid-19 in Jails and Prisons, NEW ENG. J. MED.: PERSPECTIVE (April 2, 2020), https://www.nejm.org/doi/full/10.1056/NEJMp2005687  [5] https://www.sevendaysvt.com/vermont/inmate-no-144711-is-a-90-year-old-veteran/Content?oid=4715427

[6] https://www.vice.com/en_us/article/evayea/prisons-basically-ignore-the-americans-with-disabilities-act

[7] https://www.themarshallproject.org/2015/01/27/see-no-evil

[8] https://publicpolicy.wharton.upenn.edu/live/news/1736-the-current-state-of-public-and-private-prison

[9] https://www.bjs.gov/content/pub/pdf/aspp9313.pdf (using 55 and older); https://www.aclu.org/sites/default/files/field_document/elderlyprisonreport_20120613_1.pdf (using 55 and older); https://www.ncbi.nlm.nih.gov/pmc/articles/PMC5816733/

[10] https://www.pewtrusts.org/-/media/assets/2017/10/sfh_prison_health_care_costs_and_quality_final.pdf (p. 25)

[11] Id.

[12] Id. at 26.

Annie Manhardt is a staff attorney at the Prisoners’ Rights Office in Montpelier, Vermont.