The infection rate of SARS-CoV-2 in carceral facilities is more than five times that of the general population. One in every five incarcerated individuals has had COVID-19, leading to more than 400,000 incarcerated individuals being infected. These numbers have continued to increase. These epidemiological trends are in part due to extreme overcrowding in carceral facilities, limited ability to social distance, lack of access to basic personal protective equipment such as masks and soap, poor ventilation, an inadequate infrastructure for testing, and high rates of comorbidities among incarcerated individuals. They also grossly underestimate the true impact of COVID-19. The public reporting of COVID-19 cases, deaths, and hospitalizations is not obligatory under law, leading to uncertainty about the total number of infections. Given the racial and ethnic inequities in incarceration and length of sentencing, the virus’s devastating impact on incarcerated individuals represents yet another example of structural racism’s effect on the health and well-being of communities of color.
In response to this crisis, prominent health organizations such as the American Medical Association and the National Academy of Sciences, Engineering, and Medicine (NASEM) have advocated for immediate decarceration measures in the nation’s jails and prisons. But how can communities—particularly those that are most vulnerable and impacted by the criminal legal system’s decades-long practices of mass incarceration—put this urgent public health need into practice?
Medical-legal partnerships (MLPs) are a key part of the answer. MLPs can support the release of medically vulnerable incarcerated individuals by connecting them with health professionals such as doctors, social workers, and community health workers who can advocate on their behalf. These relationships are instrumental, particularly because medically vulnerable individuals who have had contact with the criminal legal system often have limited access to clinical care. But small-scale initiatives such as MLPs are far from enough to help decompress carceral facility population density. Meaningful impact can only happen through dedicated policy making at the local, state, and federal levels. Still, this two-step framework—beginning with community-based action through initiatives such as MLPs, and then pursuing comprehensive efforts through systemic policy and legislative changes—is necessary to address the current public health crisis in carceral facilities.
Medical-Legal Partnerships And Decarceration
Because lawyers cannot testify as experts to the medical conditions of their clients due to a conflict of interest, MLPs play an important role. They provide the medical expertise needed to facilitate a process called “compassionate release,” which allows wardens and courts to order the release of medically vulnerable incarcerated individuals back into their home communities. A critical component of this process involves the attestation that individuals seeking release suffer from medical conditions that could become a matter of life or death if they were to develop COVID-19 while incarcerated. Pairing doctors with individuals seeking release on medical grounds is necessary because without expert opinion, judges lack the information to make a medically informed decision. MLPs have thus worked on preparing medical affidavits for incarcerated individuals who suffer from medical conditions at risk for severe COVID-19 disease, such as heart failure, obesity, tobacco use, coronary artery disease, chronic obstructive pulmonary disease, chronic kidney disease, cancer, and type 2 diabetes.
An application for compassionate release becomes more credible in the eyes of decision makers when it comes with the affirmative support of a medical professional, but it is by no means a guarantee. The application process for compassionate release remains opaque, contributing to the low rates of release among incarcerated individuals in prisons. Between March and May 2020, the Federal Bureau of Prisons (BOP) denied more than 98 percent of applications. The bulk of these applications were approved for individuals near the end of life (that is, within an estimated six to nine months from death). Because of the fragmented nature of the criminal justice system, data on the use of compassionate release and approval rates are also hard to obtain or simply unavailable.
Moreover, the criminal legal system’s aversion toward compassionate release is consonant with its many failures to decompress carceral populations. Although some jails were able to reduce their populations early in the pandemic, decarceration efforts in prison systems continue to be minimal and haphazard, often as a result of lengthy litigation processes. For example, in late February, the state of North Carolina settled a lawsuit ensuring the release of 3,500 people over six months. Nevertheless, decarceration remains urgently needed nationwide, not only because of the ethical imperative to protect medically vulnerable individuals but also because of well-established evidence that shows it to be one of the most effective ways of decreasing viral transmission in correctional facilities. Through this lens, MLPs thus become instrumental in deploying the expertise necessary to sustain decarceration efforts across the nation.
Relying on vaccination instead of decarceration may appear like an attractive solution to the current carceral crisis. But this approach poses several issues. First, even if all states have now made vaccines available to the adult population, access among incarcerated populations remains distressingly low. According to data from the Marshall Project and the Associated Press, less than 20 percent of incarcerated individuals in prisons have received a vaccine dose. Even in states such as Massachusetts where vaccination rates are higher than average, large variations exist in uptake. Data show that although 73 percent of people in state prisons have received at least one dose of the vaccine, only 58 percent of those in local jails have received at least one dose. These discrepancies persist while infections continue to be rampant in jails, prisons, and other detention facilities, many of which are now vulnerable to new variants of COVID-19.
Second, uptake among incarcerated individuals is both uncertain and an issue of ethical concern, not least due to historic abuses of incarcerated populations in medical research. For example, a report by the Centers for Disease Control and Prevention from three prisons and 11 jails across four states, conducted just prior to the emergency use authorization of the Pfizer and Moderna vaccines, demonstrated that only 45 percent of incarcerated people wanted to receive a vaccine. This report is consistent with other reporting from early in the vaccination process that showed that incarcerated individuals declined vaccines at high rates.
At a very minimum, these patterns point toward a persistent failure to include incarcerated individuals and their loved ones in public health decision making. Third, research shows that even effective vaccines will not work optimally in congregate and overcrowded settings such as jails and prisons. Considering the sheer scale of the criminal legal system—with its 2.3 million individuals in prisons and its 11 million yearly jail admissions and releases, not to mention the millions more under community supervision—inadequate vaccination efforts will continue to leave many vulnerable to infection and death.
Together, these considerations point to the need for non-pharmacological interventions such as decarceration through community-based support systems such as MLPs. Even more to the point, MLPs can leverage their power to join local and national efforts to strengthen ongoing decarceration efforts. Community advocacy organizations such as Black and Pink, Families for Justice as Healing, the American Civil Liberties Union, and the National Association for the Advancement of Colored People have remained at the heart of these efforts, fighting against the health and racial injustices laid bare by COVID-19. But, despite their many successes since the beginning of the pandemic, long-term change can only occur through the commitment of state and federal policy makers. Below, we provide some concrete steps that policy makers can—and should—follow to alleviate suffering in carceral facilities.
Opportunities For Action
At the federal level, the new administration should encourage the Department of Justice (DOJ) to expand its use of compassionate release for medically vulnerable people who are currently under federal supervision. The DOJ should also expand its current program of home confinement for medically vulnerable individuals. These developments would be a welcome departure from the DOJ and the BOP practices under the Trump administration, where decarceration efforts have proven lackluster despite hundreds of COVID-19-related deaths in federal facilities. Moreover, lack of oversight during periods of confinement has led to the unrestricted use of solitary confinement and other lock-down measures of up to 23.5 hours of cell confinement per day, reduced access to medical and mental health services, and inadequate access to hygiene necessities, such as masks, hand sanitizer, and soap.
Although we recognize that state and local carceral systems do not have to strictly adhere to federal carceral policy, the Biden administration can lead change and promote decarceration. One federal strategy based on recommendations by NASEM (that is, assessing optimal incarcerated population levels, revising compassionate release guidelines) could have a normalizing effect at the state level. Although several states may choose to display resistance to such developments, others may follow President Joe Biden’s lead. In fact, some states, including North Carolina, New Jersey, Oregon, and Pennsylvania, have already made substantial efforts to reduce the size of their jail and prison populations. Other states should follow their lead by creating policies that facilitate the release of those who are medically vulnerable.
At the institutional level, medical practitioners, clinics, and hospital systems should partner with their local public defenders and legal services agencies through relationships such as MLPs. Beyond the COVID-19 pandemic and decarceration, MLPs have historically existed to improve the health of patients through addressing social determinants of health and train health care providers to care for patients with a history of incarceration. In 2019 alone, MLPs assisted more than 75,000 patients by resolving legal issues that were impeding them from achieving optimal health. For example, one MLP reduced hospital admissions for asthma patients by improving their housing conditions through navigating habitability laws. By partnering with legal experts, health care providers can advocate for policy changes to minimize the carceral system’s footprint on society and disrupt pernicious cycles of over-incarceration.
Additionally, individuals can support MLP advocacy through initiating institutional discussions (that is, grand rounds, departmental presentations, resident physician training, and medical school education). Those in leadership positions should provide protected time, recognition, and financial support for those engaged in MLPs. This type of institutional sponsorship allows access to privileged spaces with high-impact opportunities, such as philanthropic donors and the media. Individuals can also leverage their power by advocating within state and national medical organizations to raise awareness, take a public stance, and further expand the medical care provided to incarcerated populations.
MLPs continue to work to ensure that those who are incarcerated do not become forgotten victims of COVID-19. At the time of this writing, cases in carceral facilities continue to rise, putting the lives of thousands of incarcerated individuals and carceral staff in danger, and risking the disintegration of their families and communities along the way. This public health emergency requires immediate attention before countless more die from COVID-19 because of their incarceration.
Originally Appeared Here