The Right to Health Must Guide Covid-19 Criminal Justice Response and Reform

Written by Nikky Soni

While the highest attainable standard of health is a fundamental right of every human  being, the adverse effects of correctional facilities on incarcerated individuals’ physical and  mental health is often ignored. The American mass incarceration system remains a politically neglected reality, rooted in slavery, that systemically reinforces race and class-based structural  inequalities. Where carceral systems already exacerbate health inequity, Covid-19 has  highlighted racial disparities in health outcomes in both correctional facilities and their  surrounding communities. In 2017, 33% of prisoners in America were Black, while constituting  only 12% of the total U.S. adult population. The continuing war on drugs, over policing, a school-to-prison pipeline, centralized power of prosecutors, and drastic sentencing laws all destabilize Black communities. Consequently, these individuals are likely to face more police brutality, incarceration, and arrests than their white counterparts, solely on the basis of criminalizing race. Paired with the lack of preventative public health action taken to protect the health of prisoners  in the face of Covid-19, the mass incarceration of Black Americans violates the fundamental  human right to health and necessitates a rights-based approach to advance reform for those pushed to the margins of society.  

Those who are more likely to face incarceration often have disproportionately high rates  of pre-existing chronic and infectious diseases due to the myriad of social determinants of health  among at-risk communities. Prison overcrowding, resulting from an increased number of  incarcerated individuals, not only exacerbates the adverse health effects of these pre-existing diseases but also increases the risk of contracting new diseases. Additionally, prison architectural design largely influences communicable diseases such as tuberculosis, with transmission amplified by poorly ventilated, claustrophobic shared cells and common areas. As a result of  limited existing healthcare resources compounded by adverse living conditions, the case rate of  Covid-19 infection in prisons (3521 per 100,000) is 5.5 times higher than the general population,  with 39 of the 50 largest U.S. outbreaks having occurred in correctional facilities. Further, the death rate from Covid-19 among individuals in state and federal prisons is estimated to be three times higher than expected if the age and sex distributions of the U.S. and prison populations were equal.

Thus far, large-scale responses to minimizing the spread of Covid-19 have been guided  by the highly transmissible nature of the infectious disease. Public health measures within the United States have included avoiding close contact with others (within six feet), wearing masks,  washing hands often, cleaning and disinfecting frequently touched surfaces, and monitoring  symptoms through temperature checks. But how can correctional facilities  –which provide a minimum of only 25 square feet of unencumbered space for prisoners in multiple-occupancy rooms– guarantee implementation of effective social distancing and preventative measures? While these recommendations are reasonable to protect the health of individuals outside of  carceral systems, they fail to account for the overcrowded, unsanitary living conditions and  inadequate existing space requirements of American correctional facilities, thus neglecting the fundamental right to health of incarcerated people.

Designed by Angela Chen

Furthermore, infectious diseases do not exist in a vacuum. Communities surrounding  prisons and jails – usually rural communities which benefit economically from the existence of  prison sites – are at a greater risk from Covid-19. The Sentencing Project found an average of 35  jobs being created for every 100 inmates, attracting additional construction and development  centered around correctional facilities, thus leading to a rapid rise in rural prison siting. As  carceral systems become a focal point of economic activity in rural areas, correctional staff are  exposed to disproportionately high case transmission rates and number of cases, thus increasing the risk of spreading Covid-19 beyond the walls of prisons and into surrounding communities.  

Early in the Covid-19 response, many states announced plans to de-densify prisons by  releasing inmates nearing the end of their sentences who were convicted of nonviolent offenses  and faced heightened risk from infection. Despite this criteria and initial intent to reduce state  prison populations, “the typical state prison system has reduced its population by just five  percent.” Where 2.3 million people are held in correctional facilities by the American  criminal justice system, a five percent reduction is epidemiologically insufficient, unable to  safeguard the health of incarcerated people. Additionally, some communities surrounding  correctional facilities have begun wastewater surveillance strategies by monitoring sewage and,  if indicative of positive cases, implementing greater testing to curb outbreaks. Although  effective in some communities, wastewater surveillance is both challenging and reactionary as an intervention which suppresses outbreaks after they emerge rather than preventing transmission itself.  

Both international human rights and domestic civil rights protect the health-related rights  of prisoners. Recognized by the International Covenant on Economic, Social and Cultural  Rights, the right to health requires that States take steps for the “prevention, treatment and  control of epidemic, endemic, occupational and other diseases” and to assure “medical service and medical attention in the event of sickness.” As correctional facilities and their surrounding communities remain epicenters of Covid-19, with case rates far outpacing average  population case rates, inaction to de-densify and prevent further transmission through public  health intervention is a fatal violation of the right to health.  

Based on the inherent dignity of human beings, human rights are neither selective nor  politically charged; they are universal, inalienable, indivisible and interdependent, extending  beyond political ideologies and encompassing incarcerated individuals. Pushing individuals to  the margins of society does not warrant a violation of fundamental human rights. Thus, in the  face of inaction – such as the inaction of policymakers and state governments – the right to  health must guide not only the Covid-19 public health response throughout carceral systems, but  also the long-awaited imperative for U.S. criminal justice reform.  

A response guided by the right to health – defined as “a state of complete physical,  mental and social well-being” – extends beyond reactionary medical care, and takes into account  the social determinants of health. These determinants of health include safe working conditions, drinking water and sanitation, protection from violence and adequate housing – as central elements of the right to health, protected under international law as interconnected rights. Both public health measures and reform within the criminal justice system must be  aimed at ensuring the fulfillment of the underlying determinants of health in order to enable incarcerated individuals to achieve the highest attainable standard of physical and mental health,  moving toward a criminal justice system centered on rehabilitation rather than retribution.  

A rights-based approach to carceral systems not only includes progressive reforms to  reduce prison populations, including wider adoption of compassionate release and the  elimination of cash bail, but also immediate responses to reduce infectious disease such as  increased sanitary measures (including free access to hygiene products); education of Covid-19,  HIV, tuberculosis, and other communicable diseases to prevent transmission; altered minimum  space requirements; screening, monitoring, and quarantine policies; increased yard time to  increase time spent social distancing; and revision of sentencing policies to reduce lengthy  sentences which drive the aging correctional population. A human rights based approach, grounded in evidence-based public health, has potential to effectively move toward progressively  realizing the right to health through efforts to address underlying determinants during and after  the Covid-19 pandemic, thus aiding prisoners in successful rehabilitation and reintegration  within society, post-release.  

While prison populations are often forgotten in the policymaking process, the intersection  of mass incarceration and Covid-19 poses new threats to Black Americans and communities of  color. Public health response and criminal justice reform guided by the right to health are critical, now more than ever, as inaction continues to destabilize communities and violate human rights.

Edited by Charlotte Milone

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