Rights of Inmates in a Pandemic

Prisons and jails have been some of the hardest hit places in the COVID-19 pandemic and are quickly becoming hotspots of community spread. Inmates are often housed in close cramped quarters and are unable to social distance, wash hands frequently, or keep sanitized living spaces. Joshua Tom, ACLU of Mississippi legal director, explains the legal rights of inmates and what prisons and states should do to mitigate the dangers posed by the pandemic.


 Joshua Tom is the Legal Director and Interim Executive Director of the ACLU of Mississippi.

Rights of Inmates in a Pandemic Brief Transcript

JC: In the COVID-19 crisis, it’s communities of people held close together that have been some of the worst hit, whether that’s nursing homes, cruise ships, or prisons. Today, we’ll talk about prisons and the rights of inmates in a global pandemic. Hello and welcome to TalksOnLaw. I’m Joel Cohen. Our guest today is Josh Tom, the Legal Director of the ACLU of Mississippi and the current acting Director of the ACLU of Mississippi. Josh, it’s a pleasure to have you.

JT: Thanks for having me, Joel. I’m happy to be here.

JC: Josh, what’s actually happening when it comes to inmates and this current coronavirus? 

JT: Yeah so you know, everybody’s heard of the stories about nursing homes that were really severely impacted. You’ve heard about the cruise ships that were held off the coast of, I believe, California. And those types of environments were really conducive to spreading COVID-19. It’s the exact same thing when it comes to prisons and jails, and it’s even worse than those environments, as I’ll explain. The reason that it’s the same is because you have no ability to follow CDC guidelines, including socially distancing, being able to ensure that your surroundings are sanitary, and even something as basic as hand washing. 

JC: What have you and your team seen when it comes to prisons in the United States so far in the crisis?

JT: As of April 2020, the largest single source of COVID-19 infections was at the Cook County Jail in Chicago. You know where you are, Joel, in New York City, one of the worst cases possibly in the city is at Riker’s Island, which is one of the main New York City jails. You have many, many inmates that have been infected. In addition, this isn’t a crisis that’s limited to those in prison or jail. You have medical staff, you have guards that are also in these facilities every day and they’re also going back into the community. So, you know the risk that’s in the jail also threatens the public at large.

JC: Jails, as an arm of the state, have a responsibility to reasonably protect inmates. What’s the line on that, Josh?

JT: There’s a good percentage of people in our country’s prisons and jails— I think last time I checked, about a quarter of the 2.3 million people either in prison or in jail in the United States— are there pre-trial, which means they haven’t been convicted of anything. And they have the right to reasonable health and safety, as guaranteed by the Fourteenth Amendment to the U.S. Constitution. Many of the people that are sitting pre-trial in our nation’s local jails and sometimes prisons are there simply because they’re poor. You have bail that is implemented across the country that say for any given even minor offense, a misdemeanor, it’ll cost $200 or $300 to bail out. And they don’t have $200 or $300, and they have to stay in jail awaiting their trial date. So you have these people that face this really big risk to COVID-19 in our prisons and jails only because they’re poor.

JC: So there’s special protections under the Fourteenth Amendment for those who haven’t been convicted. What about the rights of those who have gone through the process of trial and been convicted, what rights do they have that are pertinent to the current pandemic?

JT: You know one of the most prominent rights that people who have been convicted of crimes and that are in a detention facility have is the Eighth Amendment right to be free from cruel and unusual punishment. The Eighth Amendment includes the ability to be reasonably safe and have serious medical needs addressed. So in a prison environment during a pandemic, unless you start releasing people— certain categories of people, which we can discuss later— to allow the people that remain in the facility to follow CDC guidelines, you’re violating that Eight Amendment right because a prison or jail does not have the ability to treat COVID-19 patients, particularly large numbers of COVID-19 patients.

JC: What about, what are you seeing from the states? Clearly, they’re going to argue they’re doing the best they can. Is that a legal defense?

JT: I think states have important, compelling interests here. You know, one is public safety. You don’t want to be releasing a bunch of dangerous people back onto the streets. You also have victims’ rights; you don’t want to release somebody and potentially put a victim at risk. And you also just have the principle that once somebody has been convicted of a crime and sentenced to serve a certain number of years in a detention facility, it’s as simple as that they should serve that time. 

JC: Maybe this is a good time to hear what is your suggested or your team’s suggested path to reducing this risk or to protecting inmate rights.

JT: Yeah, of course. You know, I think the #1 thing for prisons and jails is that you have to reduce the population. You know, we've already talked about the pre-trial detainees, who are only there because they're too poor to pay several hundred dollars worth of bail. You've had people that are convicted of non-violent crimes, like drug possession, they've already served a substantial sentence and are close to being eligible for parole. You have people who are in there for technical parole violations, which means that they were already out on parole but they violated a condition of their release, such as not checking in with their parole officer, say going to a bar and drinking. You know, the more people you have in prisons or jails, the worse case it is for purposes of COVID-19.

JC: What have you seen in response, or what have you seen prisons doing of their own initiative to get ahead of this crisis?

JT: You know, you’ve seen actions at the state level and also the federal level, the latter being Attorney General Bill Barr sent guidance to the Federal Bureau of Prisons, telling them to look out for at-risk inmates who pose little risk of recidivism and are more safely able to serve their sentence in home detention. We want to ensure that the public is safe. We want to ensure that those inside prisons, whether it’s an inmate, jail staff, prison guard, can follow CDC guidelines. And we want to make sure that a prison or jail like Riker’s Island or like Cook County Jail in Chicago does not act as a massive source of COVID-19 infections, which threatens not only the facility, but the public as a whole.

JC: Josh Tom, thank you for joining us today and taking time out of your schedule. We hope that your efforts will help and reduce the number and intensity of these types of outbreaks.

JT: Thanks for having me, Joel. I’ve enjoyed talking with you.

JC: And thank you for watching TalksOnLaw.