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Social distancing is virtually impossible while incarcerated. That means prisoners with underlying health conditions are at heightened risk from COVID-19. Counties and municipalities have begun to release vulnerable prisoners for this reason. As yet, however, there has been no movement nationally on how to treat low-level offenders and people awaiting sentencing.
If nothing changes, up to 100,000 prisoners may die from COVID-19, according to Professor David Mills of Stanford Law School and Emily Galvin-Almanza, the executive director of Partners for Justice.
It is not just prisoner rights advocates who are worried. Joining the ranks of people calling for action is U.S. District Judge Jesse Furman. On March 31, Judge Furman called on Congress to protect federal prisoners, writing that he lacked the authority to release a prisoner he had sentenced to three years in jail on March 12, despite wanting to do so.
According to the Bureau of Prisons, just over 10% of the federal prison population is older than 55, the age group most at risk from the novel coronavirus. Many inmates also suffer from preexisting conditions.
Once COVID-19 takes hold, it is virtually impossible to protect inmates from transmitting the disease. Hand sanitizers are contraband due to its alcohol content. Handcuffed prisoners cannot cough into their elbow. And prisoners cannot isolate or remain six feet apart.
This leads to rapid spread. At Rikers Island, for example, prisoners and employees have tested positive for COVID-19 at seven times the rate of the rest of the city, which is now the world epicenter of the disease. And NPR recently reported on the death of a third federal inmate in Oakdale, Louisiana, due to COVID-19.
On March 13, the federal Bureau of Prisons implemented a ban on moving prisoners. Where prisoners were at that time is where they will be for an indefinite period.
For now, lawyers will have to argue on behalf of their clients for pretrial release and for low-level offenders at heightened risk. The issue is balancing the “public safety" aspects with the need to prevent mass death at prisons across the country. According to Brian Neary, a criminal defense lawyer in New Jersey, there is an alternative way of thinking about public safety: ““One, the individual; and two, the population and the need to save limited medical resources for COVID-19 patients."
As the novel coronavirus continues to spread rapidly, prisoners are at a very high risk of contracting COVID-19, and the morbidity rate for prisoners is expected to be high. Right now, it is left to attorneys arguing on behalf of individual clients to protect them as much as possible.