Lost amid the chaos of preparing for, and coping with, the Covid-19 pandemic is an honest assessment of what to do with prison inmates. At least it appears that way in Connecticut, where, according to the Prison Policy Initiative, about 16,000 people are imprisoned. (I’ve heard others contend the population is as low as 12,000.)
These institutions are a perfect storm waiting to happen.
First, the prisoners themselves are held in close proximity to one another. I’m not sure how a regime of social distancing – keeping six feet from one another – works in cell blocks or prison dormitories.
Second, the prisons are not isolated communities. Hundreds of correctional officers come and go daily, circulating among the inmates, and, when off-duty, in their communities. It is inconceivable that workers will not bring the disease to the inmates.
At last count, at least a dozen correctional officers have tested positive for the virus, and, just the other day, a prisoner tested positive.
What happens when a prison becomes a viral hotspot?
Will guards continue to report for duty, thus exposing themselves to the risk of contagion? Will guards be permitted to leave the facility to return to their communities, thus bringing the virus home to family and friends?
Or will guards decide simply that the job is not worth the risk? Yes, the hazardous duty pension is generous and quickly earned, but at what cost?
Visions of Attica, the site of the 1971 riot at the Attica Correctional Facility in New York, haunt me. Thirty-three prisoners and 10 guards were killed when the prison erupted amid demands for better living conditions. What happens when Covid-19 moves into the supermax and guards decide to stay home?
What can be done?
There are simple, obvious solutions that address part of the problem. Pre-trial detainees, those folks incarcerated because they cannot post a bond, can be released. This is an easy call for non-violent offenders. It makes no sense to house a man or woman in an inherently dangerous environment simply because they cannot afford a bondsman’s fee. States throughout the nation have already begun to reassess the custodial status of such inmates. Has Connecticut? If not, why not?
Many states have also created an expedited process for assessing the risk posed by release of each inmate, a form of rationing likely, in a pandemic, to carry life and death consequences every bit as real as deciding who gets a ventilator and who does not. Elderly non-violent inmates are released; young violent offenders are, apparently, not.
In Connecticut, the power to pardon or commute sentences belongs to Board of Pardons and Parole. Incredulously, it appears that this board has been sent home to ride out the viral story. Its April 1 meeting has been postponed until early May, according to the board’s website, with apologies to all for the inconvenience and a hope to return to business as usual as soon as possible.
Seriously? That’s like an emergency room doctor posting a “Gone Fishin’” sign on the doors of the hospital.
What are guards told about exposure to risk? Are they told to stay home if exposed?
Federal prison guards and inmates have joined together in an unusual class action suit in the District of Columbia, demanding relief from exposure to he what will no doubt be the viral tinderbox of the district’s prisons. That matter is pending before a federal judge.
Governor Ned Lamont has acted boldly in response to the pandemic. He’s issued a series of executive orders effectively shuttering the state. He’s gone out on a constitutional limb in some cases – he unilaterally extended statutes of limitations and other filing deadlines, a power he most likely does not possess. Under the separation of powers doctrine, the power to set a statute of limitations belongs to the legislature; the power to set scheduling deadlines belongs to the courts.
Once the pandemic crisis has passed, these extraordinary assertions of executive power will be sorted out in the courts, most likely by judicial decisions to equitably toll the deadlines so that litigants relying on the governor’s decree are not harmed.
But what about the looming crisis in the prisons? Once the virus strikes a prison, it will be too late.
The darker truth is that there appears to be no urgency to act because of a silent calculus. Those incarcerated are behind bars to protect society – or so the penal logicians suggest. Society still requires protection, especially now, when the bonds of civil society appear to be straining to the breaking point. On this logic, prisoners are on their own, left to run the risk of death as a consequence of their crimes. It’s a cold, cold logic.
Governor Lamont should order expedited review, and decisions, about whom to release in this crisis. If we are going to decide that some men and women must be left to face the storm locked away in the hot spots to come, let’s at least be honest about it.
Connecticut abolished the death penalty several years ago. Reinstituting it by indifference is not an option.