POINT OF VIEW
Advocates with Washington Community Action Network (CAN) gathered in Olympia on December 9 to mourn the lives of incarcerated people lost to COVID–19, and to raise awareness for prison reform. Noreen Light, a local activist whose son has been in prison for the last 18 years, said that without releasing more inmates “there is just no way to make sure prisoners have adequate space, sanitation, or protective equipment.”
She cited the recommendations of the Office of Corrections Ombuds: the only way to protect prisoners is to reduce the number of incarcerated people. That means beginning with the elderly, those with pre-existing medical conditions, those scheduled to be released soon anyway and inmates who are pregnant. “People in prisons are people,” Light said; “we can do better, we have to do better.”
In the middle of April, 2020, after the first month of COVID–19 hit the US, the Washington Supreme Court voted to deny the release of thousands of incarcerated people. In a split 5-4 decision, the judges ruled that the petitioners hadn’t proved that the Department of Corrections (DoC) failed to protect inmates from the virus.
…the only way to protect prisoners is to reduce the number of incarcerated people.
During the hearing, Assistant Attorney General John Samson invoked the unfortunate potential for a certain number of incarcerated people to end up “homeless” as a core reason not to release offenders. The logic of this actually undermines the State’s ability to implement public health measures. Nick Straley, Assistant Deputy Director of Advocacy for Columbia Legal Services and lead attorney for the group of five Pierce County petitioners, said “uniformly, national public health and correctional experts agree that to protect people in prison from the virus, a significant reduction of the prison population is necessary.”
Straley argued that “cleaning at jails statewide has been woefully inadequate to kill virions that may be left on surfaces.” (The News Tribune, Alexis Krell) While the justices met—in the interests of health and safety—to announce their verdict via Zoom, they determined that even inmates at high-risk of contracting or spreading the disease, such as the elderly, those with underlying conditions, as well as those slated to be freed soon, were not exempt from completing their sentences.
Out of the roughly 12,000 prisoners affected by the court’s decision (3,400 of whom were under sentences that did not oblige them to notify their victim upon being released), only 1,100 prisoners from “vulnerable populations” received emergency commutations from the governor. Hundreds of them were required to wear electronic monitoring equipment or be subject to work furloughs or other punitive restrictions.
The prosecution insisted that by March all prisons in Washington had “handed out masks, created separate sleeping spaces, [and] tested 300 inmates for COVID.” [AP, Martha Bellisle]. However, a number of reports contradicted these claims. On August 20, The Seattle Times covered an outbreak at The Washington State Penitentiary in Walla Walla, in which proper protocol had not been followed.
According to Jedidiah Maynes, who interviewed Walla Walla inmates, “the main issues [were] lack of proper social distancing, the continuation of prisoner transfers and poor personal protective equipment.” At that time there were 114 positive, community spread cases, and a group of prisoners were organizing a hunger strike. Three months later, Allison Stormo reported that another outbreak had occurred in Walla Walla, with at least 30 additional prisoners contracting the disease.
A similar outbreak at a correctional facility in Connell, north of Pasco, caused over 400 infections. According to the Tri-City Herald, on November 22 the National Guard was “called in to help test Connell prison inmates.” As for the situation at Walla Walla Prison, Stormo said “it is unclear if the penitentiary is also quarantining,” and her calls for verification were not returned.
By the end of 2020, there were more than 3750 confirmed cases of COVID–19 among people imprisoned in Washington State, affecting Black Americans more than any other demographic group. Their infection rate is about six times that of the total population. As of this writing, at least four prisoners have died of complications due to COVID–19.
Noreen Light said that if a prisoner tests positive for the virus they are put in solitary confinement, adding that those who contract symptoms may not report them out of fear of the mental strain of isolation. Light has not been able to visit her son since March, and is currently “focusing her energy on [championing] earned release time,” or parole, which Washington State does not grant. She is also working with the Black Prisoners Caucus to promote juvenile offenders’ ability to go before a review board, and to revitalize the long-standing Sentencing Reform Act which has been largely ineffective, degrading, and exploitative.
During a global health crisis it is unconscionable to hold people in unsafe conditions against their will, let alone in defiance of the advice of public health experts. It is also unconstitutional when there is the potential for greater social suffering resulting from the original sentence. The Eighth Amendment to the Constitution bars the state from inflicting “cruel and unusual punishment” on individuals sentenced to prison. In Farmer v. Brennan, a 1994 Supreme Court case, it was ruled that the Eighth Amendment prohibited “deliberate indifference” on behalf of the state regarding prisoners’ “serious health needs.”
However, the high court decided that the prisoners’ lawsuit was “excessive” and their plea was “an overreach,” stating they had failed to show that the DOC’s actions “constitute[d] deliberate indifference to the COVID–19 risk. ” Five justices thus condemned, in effect, thousands of non-violent, low-level offenders to risk a punishment far greater than the one they were sentenced to. The decision left them to languish behind bars, unable to protect themselves from a deadly pandemic introduced from the outside world.
Given the alarming rate of infections arising inside correctional facilities, individual counties have moved to reduce the number of people in their jails. The ACLU reported that Washington jails decarerated about half of their total population during the first few months of the pandemic. This provoked a response from victims’ rights advocates along with a cohort of political and social conservatives. Victims rights advocates, however, must not be allowed to undermine public health decisions based on medical science or the sociology of decarceration.
The “biggest problem” with the victims rights agenda, according to Noreen Light, is “people basing their decisions on fear, not facts.” It takes an intelligent understanding of the gravity of the situation to realize that there must be full community mobilization in order to contain the virus. That includes freeing up the same amount of inmates currently in prison as have been released from jails statewide.
As the government fails to control the spread of the virus, It is becoming more clear than ever that Incarceration in the US is a toxic system. Who else is there to defend the convicts among us from a novel coronavirus which has come to concentrate primarily in and across social institutions to a devastating effect? It is ultimately cruel and unusual to enforce excess punishment on those already in custody. In the time of coronavirus, how will we make sure that the state, our state, is not sentencing people to cruel and unusual punishment, nor making them live in misery with the prospect of dying in vain?
There has been far too little effort to reach an ethical, and effective compromise on urgent public health issues inside Washington State prisons. The result of the State’s decision to reject the petition for large reductions in the prison population is a continuing failure to protect incarcerated people and achieve social distancing. This denies the constitutional principle of humane, and appropriate, punishment, and in doing so has placed everyone, on the inside and out, at greater risk of exposure.
Daniel Mootz graduated from The Evergreen State College and enjous the woods, art and travel.