by Efrén Paredes, Jr.
"No person should fear for his or her life each day as a result of the carelessness to basic human needs." (Ariel Berkowitz, "(Un)Masking the Truth -- The Cruel and Unusual Punishment of Prisoners Amidst the COVID-19 Pandemic, 37 Touro L. Rev. 347, 373 (2021)).
In an August 3, 2021 memorandum sent to people exiled in its carceral facilities Michigan Department of Corrections (MDOC) Central Office staff wrote:
"We have begun to see an uptick in prisoner [COVID-19] cases after having just two positive cases among the prisoner population this past weekend. Since Friday, there have been 25 positive cases at nine facilities."
A subsequent memorandum revealed that positive tests at two of the prisons were false positives. It attributed the errors to defective reagents used during the testing process. Despite the errors the virus still quickly reemerged in seven prisons in a short span of time. Since then the MDOC has issued no new information regarding infection updates to people locked away in its prisons.
The MDOC website, however, paints a different picture of the problem. According to the latest data available to the public on August 18, 2021 an additional 525 people have tested positive for COVID-19 in Michigan prisons during the past fourteen days. An average case count of 37.5 per day.
The numbers are eerily reminiscent of March 2020 when the virus began exploding in the state's carceral facilities. The first wave left an astonishing 78% of people incarcerated in MDOC prisons infected and 143 people succumbed to the biological contagion.
The unsettling new data reveals an ominous COVID-19 recrudescence infiltrating the state's carceral facilities which the pandemic has previously exposed are bacteria factories for replication of infectious disease.
To the outside observer the number of new infections may not seem like a large number. In a sea of people living in unsanitary crowded spaces they are unable to properly social distance in, however, the number represents a viral tinderbox.
In an article titled, "Mass Incarceration, Meet COVID-19," Sharon Dolovich, Professor of Law, UCLA School of Law, wrote:
"From the earliest days of the pandemic, it was clear that the novel coronavirus posed an outsized danger to the more than two million people locked inside America's prisons and jails."
She added, "By summer, infection rates in state and federal prisons dwarfed national rates by a ratio of 5.5 to 1, and, accounting for age, people in prison were dying at three times the rate of society as a whole." ("Mass Incarceration, Meet COVID-19," 87 U. Chi. L. Rev. Online 4 (2020)).
"[T]he largest clusters of infection have occurred within prisons and jails, distantly followed by meatpacking plants and nursing homes. All five of the top five clusters of COVID-19 infections around the country are in carceral facilities[.]" (Camila Strassle & Benjamin E. Berkman, "Prisons and Pandemics," 57 San Diego l. Rev. 1083, 1084 (2020)).
According to Eda Katharine Tinto and Jenny Roberts, authors of "Expanding Compassion Beyond the COVID-19 Pandemic," 18 Ohio St. J. Crim. L. 575, 577 (2021): "By January 26, 2021, more than 365,000 prisoners tested positive for COVID-19, and 2,314 prisoners died as a result. Infection rates within prisons remain high and continue to rise."
This staggering number made prisons the epicenter of the pandemic and amounted to more deaths of incarcerated people "than has been produced by carrying out formal death sentences in the United States for the entire period from 2001 to 2020." (Douglas A. Berman, "The New Death Penalty: COVID Has Now Killed More US Prisoners in Months Than the US Death Penalty Has in the Last Two Decades," Sent'g L. & Pol'y (Aug. 23, 2020, 11:23 AM)).
HOW DID THIS HAPPEN?
The viral spread occurring inside America's fortresses of seclusion has been deliberately obscured from the public consciousness in an effort to prevent people from recognizing the sheer danger prisons present to human life.
It has also been hushed to veil the morally reprehensible refusal of lawmakers to create a pathway to reduce the population density in carceral facilities as a strategy to obviate a deadly deluge of disease transmission.
It is lost on them that "[t]he contagion-rich environment of jail and prison means a detained [person] may never come home, and [her/his] community may suffer the long-term effects of his permanent absence." (Jenny E. Carroll, "Safety, Crisis, and Criminal Law," 52 Ariz. St. L.J. 769, 788 (2020)).
Media reporting, academic journal articles, and anecdotal accounts have shined a searing light on the painful fact that state officials were slow to respond to protecting people in prisons when the pandemic hit eighteen months ago.
Michigan prisons became ravaged by the virus during a feckless period of inaction before people were provided with masks, began being tested for COVID-19, and provided adequate medical care. Many people were initially returned to their housing units after reporting symptoms of the airborne communicable disease which engendered further spread of infection.
It also took weeks before the practice of having hundreds of people eating closely together in crowded dining halls was suspended at several prisons and meals were safely distributed to people in containers to consume in their living area.
DELTA VARIANT ENTERS THE PICTURE
The latter is of substantial importance because the COVID-19 Delta variant, which is primarily transmitted through proximity and shared air, has a viral load one thousand times greater than the first iteration of the disease.
It is exponentially more easily transmissible than the original wild type Coronavirus and is particularly pernicious because of its ability to turn off a person's immune system long enough to overwhelm them with infection.
The Delta variant is raging across the nation and infection rates continue to climb. It now accounts for 99% of U.S. COVID-19 cases. August 17, 2021 the country reached 139,872 average positive daily infections, a 600% spike in cases in just the past month, according to data obtained from Johns Hopkins University.
The CDC recently reported that there are currently 80,000 people being hospitalized nationwide due to complications from COVID-19 -- the highest number since February. There were also over 5,000 deaths during the past week, averaging 820 per day. It is a 57% increase from the previous week and more than triple the number of deaths in early July.
As of August 4, 2021 only 64% of people incarcerated in Michigan prisons have been vaccinated, according to MDOC data. Over 11,000 -- or one-third -- of the prison population remains unvaccinated and highly susceptible to contracting/recontracting COVID-19.
This is very troubling in light of a recent CDC study of an outbreak in Massachusetts which found there was no significant difference between the COVID-19 viral loads of fully vaccinated people and those of unvaccinated people.
Last week CDC Director Dr. Rochelle Walensky stated we can expect to see tens of thousands of Delta variant breakthrough cases, meaning fully vaccinated people being infected with the virus. As of today there have been 248,000 breakthrough cases nationwide.
These facts, coupled with the Delta variant's screaming level of transmission and virulent viral load, vastly elevate the threat of a COVID-19 firestorm sweeping through the carceral system once again.
Some argue vaccinations will help reduce hospitalizations and deaths for those who contract the disease. While partially true, it ignores the reality that it won't prevent them from the substantial risk of experiencing "long COVID," a term commonly referred to as long-term physical, psychiatric, and neurological effects.
"Studies estimate that long COVID may affect between 10 percent and 30 percent of adults infected with the [C]oronavirus. ... Some symptoms resemble aftereffects of concussions and other brain injuries." (Pam Belluck, "This Is Really Scary," The New York Times (Aug. 8, 2021)).
In a disturbing study published in The Lancet medical journal last month researchers reported finding that COVID-19 can cause 200 symptoms in ten different bodily organs. In places like prisons that act as vectors or hotspots for transmission of the virus the potential for this to occur is far greater than for members of the general public.
LIVING IN PRISON DURING THE COVID-19 ERA
Unlike vaccinated people in the free world who can socially distance in carceral facilities it's a virtual impossibility to do in most areas, diminishing vaccine protection. "The physical set-up of virtually all prisons is inherently conducive to the spread of COVID-19." (Tinto & Roberts, supra at 576).
The confluence of a respiratory pathogen in congregant living conditions plagued by overcrowding, poor ventilation, people eating in close proximity to one another in dining halls, and using shared utilities like showers, toilets, and sinks are a lethal combination creating a super-spreader environment. (See Elizabeth Barnert et al., "Prisons: Amplifiers of the COVID-19 Pandemic Hiding in Plain Sight," 110 AJPH 964 (2020)).
In many housing units dozens of people sleep close to one another in bunk beds or in barracks-style open bay areas only a few feet apart.
Vulnerable people in carceral facilities are unable to extricate themselves from being bathed in COVID-19 and they are defenseless to protect themselves with effective masks. "In dramatic fashion, the pandemic illuminates the urgent need to drastically reduce the number of people behind bars in prisons and jails." (Kristen Nelson & Jeanne Segil, "The Pandemic as a Portal," 98 Denv. L. Rev. 337, 340 (2021)).
A year ago I sounded the alarm about the propensity for a COVID-19 surge in Michigan prisons in a series of articles before the virus engulfed the prison system. Television, radio, print, and online news media outlets echoed this reporting as well.
To protect the health and safety of people incarcerated in Michigan prisons the MDOC needs to end double-bunking, separate all beds in congregant living areas by six feet, and provide incarcerated people with proper life-saving N95 masks.
Dr. Anthony Fauci, director of the National Institute of Allergy and Infectious Diseases, and other respected epidemiologists argue that N95 masks are the only masks that can effectively protect someone from the Delta variant.
Three-layered masks are helpful but not as effective as N95 masks. This is especially true in areas where virus transmission is particularly high like in carceral facilities.
In a recent CNN interview Michael Osterholm, Director, Center for Infectious Disease Research and Policy, University of Minnesota, stated that as a general rule if you can smell smoke through a mask you're wearing the mask is too porous to effectively protect against the Delta variant.
COVID-19 KNOWS NO BORDERS
"From a global perspective, coronavirus is an issue that impacts and threatens us all." (U.S. Congresswoman Eddie Bernice Johnson & Lawrence J. Trautman, "The Demographics of Death: An Early Look at COVID-19, Cultural and Racial Bias in America," 48 Hastings Const. L.Q. 357, 361 (2021)).
According to the World Health Organization, COVID-19 can "act as a source of infection, amplification and spread of infectious disease within and beyond prisons." (Regional Office for Eur., World Health Org., "Prevention and Control of COVID-19 in Prisons and Other Places of Detention" 1 (2020)).
An airborne virus like COVID-19 flourishes in carceral facilities. It also has the capacity to have a profound spillover effect in neighboring cities and towns, thereby becoming a dangerous driver of community spread. Employees enter prisons by the thousands and return to their communities each day where they live and interact with family and friends.
"If COVID has taught us anything, it is that our collective failure to recognize the embeddedness of carceral institutions in the broader community and to ensure humane conditions for those individuals living inside is not only cruel but also self-defeating. When people are incarcerated, they do not disappear. Despite high walls, the facilities to which they are removed are still very much within society itself." (Dolovich, supra at 34)
RECOGNIZING HUMAN DECENCY
Nationwide demonstrations during the summer of 2020 around the disproportionate police killings of unarmed people of color sparked serious conversations about racial injustice. They also revealed the brutal impact prisons have on the lives of the 2.3 million people they cage.
The use of incarceration as the primary instrument of social control has been normalized far too long. The false and persistent narratives of people behind bars have demonized and reduced them to their worst mistake. This alienation or "othering" characterizes them as unworthy or incapable of redemption and subsequently leads to their objectification.
According to James M. Binnall, author of the article, "Respecting Beasts: The Dehumanizing Quality of the Modern Prison and an Unusual Model for Penal Reform," 17 J.L. & Pol'y 161, 162 (2008)): "Almost unanimously, the managerial regimes that operate today's prisons view prisoners as commodities, unworthy of rehabilitative efforts."
There is a direct through line between this distorted thinking and the dehumanization of incarcerated people. The absence of compassion results in the devaluing of life and protracted human suffering.
This nexus not only ignores the inherent dignity of people trapped in prisons, it also prevents lawmakers and carceral facility administrators from reducing the crowded living conditions that serve as incubators for the proliferation of deadly diseases like COVID-19.
As the world was fixated on the Derek Chauvin trial in the Spring of 2021, the Minnesota police officer charged with the death of George Floyd, one of the most repeated refrains the world heard was "when a person is in the custody of law enforcement, they are in their care."
The same can be said about the State of Michigan and MDOC -- the people in their custody are in their care.
WHERE DO WE GO FROM HERE?
If the past is prologue we know that "the price of inaction given the extreme vulnerability of prisons and jails to the spread of infectious diseases has never been higher." (Mirko Bagaric, Peter Isham & Jennifer Svilar, "The Increased Exposure to Coronavirus (COVID-19) for Prisoners Justifies Early Release" 48 Pepp. L. Rev. 121, 141 (2021)).
The MDOC's silence about the rise of positive COVID-19 tests in Michigan prisons is dangerously misleading incarcerated people to believe they are not entering a new surge of positive infections and making them less fearful about contracting the virus.
Previous to its August 4, 2021 message it had been months since the MDOC had engaged in outreach with incarcerated people to discuss COVID-19 or encourage vaccinations despite low vaccination numbers behind bars.
The absence of an MDOC vaccine messaging campaign has prevented potentially thousands of immunizations and diminished their value. It has likely also produced the unintended consequence of contributing to an increase of viral transmission in prisons.
Many hope that lawmakers and MDOC administrators learned from the first wave of the pandemic and aren't recklessly naive to believe that making the same mistakes will produce different results.
They need to also course-correct about being silent regarding rising infection numbers with the incarcerated population and engage in a robust vaccine outreach campaign to help stem further virus transmission..
The first time the MDOC had a playbook for protecting incarcerated people from a contagious airborne disease pandemic and didn't use it (i.e., Exec. Office of the President of the United States, "Playbook for Early Response to High-Consequence Emerging Infectious Disease Threats and Biological Incidents" (2016)).
The document produced by the Obama administration three years prior to the COVID-19 pandemic offered "guidelines to correctional facilities regarding how to stop the spread of the virus and how to deal with issues such as Personal Protective Equipment (PPE) and the use of hand sanitizer that has at least 60% alcohol content." (Gabriela M. Guzman, "An International Comparative Study of the United States, the Netherlands, and Mexico: Pandemic Responses in Prisons and Correctional Institutions During the 1918 Spanish Flu and the Era of COVID-19," 27 ILSA J. Int'l & Comp. L. 343, 358 (2021)).
Eighteen months -- and 26,731 incarcerated people infected with COVID-19 later -- state actors now have a dearth of scientific and experiential data and resources to inform their decision-making.
Not being animated to implement every available public health measure to prevent the specter of another health catastrophe inside the state's prisons will not only be carelessly negligent, it will be deliberately indifferent and tantamount to complicity.
(Efrén Paredes, Jr. is a journalist and social justice changemaker who has been incarcerated in Michigan for 32 years. He works at the intersection of criminal penal reform, racial justice, and movement-building. You can find links to his writings, TV news/radio/podcast interviews, and activism by visiting http://fb.com/Free.Efren.)