From the outset of the COVID-19 pandemic, criminal reform activists screamed about what it meant for jails and prisons for obvious reasons. Not only do they lack the ability to take basic safety precautions available to people on the outside, but they exist under conditions particularly prone to spreading infection. But then, they’re prisoners. So while it was obvious that jails and prisons would be hit hard by COVID, the cries of activists never caught serious traction.
The same question, what to do about prisoners, is playing out again now that vaccines are expected to become available.
“There’s no way it’s going to go to prisoners before it goes to people who haven’t committed any crime,” Gov. Jared Polis of Colorado, a Democrat, said this week.
Polis, despite his occasional attempts to pretend he’s an empathetic sort, makes the common simplistic error that most people make, and consequently feeds into it. First, most people in jail haven’t been convicted of any crime, but are being held pre-trial and remain presumptively innocent. A collateral, if somewhat snarky, addition would be to note that just because people not in jail haven’t gotten caught yet doesn’t mean they haven’t committed any crime.
But even the post-conviction prisoners have a right to both protection from the pandemic and a place on line for the vaccine. Put aside those who might argue that giving the vaccine to prisoners, or for that matter, to black people, is some conspiracy by white supremacists to test it on the marginalized before taking it themselves.
They may be prisoners, but they weren’t sentenced to death or disease, just incarceration. They are entitled to do their time and walk out when their sentence is served. They are entitled to survive prison. We, meaning society, have a duty to assure that they do, to the extent possible. Having decided that incarceration was required in the interests of societal safety, we undertook a duty to provide for prisoners’ health and safety while inside. We have not done well.
People in jail or prison are four times as likely to be infected with the coronavirus as the general population and twice as likely to die from it, according to the National Commission on Covid-19 and Criminal Justice. A New York Times database shows 200,000 infections and 1,450 deaths among incarcerated people and corrections officers. Grim death tolls have mounted in prisons across the country, including at San Quentin in California, Pickaway in Ohio and Laurel Highlands in Pennsylvania.
If all of this strikes a vaguely familiar tone, it could be because the concerns echo the same issues raised when we speak to providing college education to prisoners, even to the good old days when they were provided with color TVs when most people on the outside were still watching black and white. Why do criminals get to be educated for free when I have to pay for junior’s college?
But this is a different issue, even if it invokes similar passions about the unfairness of providing a cost-effective and conceptually legitimate justification for turning out prisoners capable of resuming their place as law-abiding, productive citizens rather than recidivists. This time, it’s about life and death, or life and physical impairment by the long list of COVID-related disabilities affecting hearts, lungs and brains.
We have a duty to prisoners to keep them alive and healthy while in the custody of the government. You may not like it, and it may be honored too often in the breach, but it is our duty. While you may see it in comparison to our general duty to all citizens, or all people, as a relative duty, you would be wrong.
By choosing to use prison as our mechanism for punishment, we have forcibly put people in a physical place under conditions entirely outside their control for a period of time. They don’t get the option to decide whether to wear masks, to social distance, to live in solitude, even to wash their hands as needed, no less use sanitizer. We did this to them, even if we take comfort in justifying it by saying, “well, they did it to themselves by committing crimes.”
Some of those crimes are heinous. Some petty. Some technical at best. Some non-existent. Yet, they’re all in this together, as if they’re all murderers. And even murderers are entitled to survive this pandemic, even if only to be executed later.
In October, the National Academies of Sciences, Engineering and Medicine released a framework for the equitable allocation of the vaccines. People 65 and older in prisons and jails, and those of like age in nursing homes and assisted-living facilities were ranked just behind health care workers and emergency medical workers on the suggested Phase 1 priority list.
The vaccine rollout will take time. Logistics are what they are. And it will prove haphazard, as people remain dubious about both the efficacy of the vaccine and the as yet unknown long term side effects. There will be “winners” and “losers” in the rollout, and choice will have to be made, much like who gets an ICU bed and ventilator and who does not.
Despite our beliefs about the duty of government to provide for our safety, it’s much like the duty of police to come to our aid. Absent a special duty, it doesn’t exist. But we do have a special duty when it comes to those we’ve taken into custody and denied the opportunity to make life decisions for themselves.
As to prisoners detained pre-trial, the ones who are presumed innocent and remain unconvicted of any offense, there should be no doubt. These aren’t criminals, no matter how hard some people want to ignore their presumption of innocence and assume their guilt.
As to the post-conviction prisoners, society chose to undertake a special duty to protect and provide for their health. It’s now time to pay up. And don’t get too high and mighty about them being criminals. Few of us are as pure as we pretend to be. Just because we didn’t get caught isn’t a sound reason to believe our right to survive is greater than theirs.
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