The world is increasingly focused on COVID-19. By March 23, 2020, according to the
World Health Organization (WHO), 332,935 people had been diagnosed with COVID-19 in
190 countries and territories around the world and 14,510 had died.
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In the United States, 35,530 people have been diagnosed with the disease and 473 people
have died.
2
These numbers are likely an underestimate, due to the lack of availability of testing,
and will, without a doubt, rise.
COVID-19 is a serious disease, ranging from no symptoms or mild ones to respiratory
failure and death. There is no vaccine to prevent COVID-19. There is no known cure
or anti-viral treatment at this time. Those most at risk, according to WHO, include
those over 60 years of age and those with cardiovascular disease, diabetes, chronic
respiratory disease, and cancer.
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WHO further states that the risk of severe disease increases with age starting from
around 40 years. The US Centers for Disease Control and Prevention (CDC) identifies
additional categories at risk, including individuals with blood disorders, chronic
kidney or liver disease, compromised immune system, endocrine disorders, including
diabetes, metabolic disorders, heart and lung disease, neurological and neurologic
and neurodevelopmental conditions, and current or recent pregnancy.
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That means that a large proportion of people are at risk, especially in middle- and
upper-income countries which have aging populations.
Recognizing the importance of physical distancing as the main strategy for preventing
transmission, public health officials have recommended extraordinary measures to combat
the spread of COVID-19. Schools, courts, sports and cultural spaces, and other congregate
settings have been closed. In the US, 50 states, seven territories, and the District
of Columbia have taken some type of formal executive action in response to the COVID-19
outbreak.
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As of March 23, 2020 five states (California, Illinois, New Jersey, New York, and
Ohio) prohibit gatherings of any size; nine states prohibit gatherings of more than
10 individuals (Colorado, Hawaii, Louisiana, Maine, Maryland, Texas, Utah, Vermont,
and Wisconsin); four states prohibit gatherings of more than 25 individuals (Alabama,
Massachusetts, Oregon, and Rhode Island) and eight states prohibit gatherings of more
than 50 individuals.
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This summary presents a picture of extraordinary numbers already affected and at risk
and unprecedented response. However, one area where there has been too limited of
a response to date is action to prevent transmission in detention centers, including
jails, prisons, and immigration detention facilities. All of these institutions are
closed environments, much like the cruise ships that were the site of early concentrated
outbreaks of COVID-19. Detention facilities are particularly of concern because of
crowding, the proportion of vulnerable people detained, and often limited medical
care resources. People in detention facilities cannot achieve the physical distancing
needed to effectively prevent the spread of COVID-19. Showers, toilets, and sinks
are shared. Food preparation and food service is communal. Staff arrive and leave,
providing a link between the community and the detention center, often—because of
limited testing and asymptomatic infection—without adequate screening. Yet, more than
three months since COVID-19 emerged, the US CDC lists guidance for schools, childcare
centers, colleges, workplaces, faith-based organizations, community events, homeless
shelters, healthcare professionals and retirement communities but not for jails, prisons,
or immigration detention centers.
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Police, first responders, and correctional officers are also at risk as they are less
able to practice physical distancing in their official duties. Unsurprisingly, we
are starting to see this population affected and their colleagues who are exposed
to them, ordered into quarantine. For example, in Kirkland, Washington, 27 firefighters
and two police officers were in quarantine along with four King County, Washington,
paramedics. In San Jose, California 77 firefighters were in quarantine.
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More than 140 firefighters were quarantined in Washington DC.
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Six New Jersey police officers tested positive for COVID-19 and another 20 officers
were under self-quarantine, as of March 19.
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So far, two state prison employees tested positive for COVID-19 in California, two
in Michigan, a county jail officer in Washington state, and one Georgia Department
of Corrections employee tested positive.
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A corrections officer at Rikers Island (NY) and an inmate have tested positive; an
investigator with NYC’s department of corrections died of COVID-19.
12
In Wisconsin, a prison doctor tested positive.
13
In New Jersey, a member of the medical staff at Elizabeth Detention Center in New
Jersey a private immigration detention center tested positive for coronavirus.
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A correctional officer at Bergen County Jail (NJ), which contracts with Immigration
and Customs Enforcement (ICE), also tested positive for COVID-19.
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As a result of these cases, hunger strikes have broken out in three ICE detention
centers in New Jersey “as detainees protest what they describe as deteriorating conditions
and a failure to adequately address the potential spread of COVID-19”.
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If police, first responders, and corrections officers are significantly affected by
COVID-19, whether through being infected, exposed by detainees, their fellow officers,
or in the community, large numbers will be unavailable to work due to self-quarantine
or isolation, at the same time that large numbers of detainees who are potentially
exposed will need to be put into individual isolation or transferred to advanced medical
care, putting tremendous stress on detention facilities.
States have an obligation to ensure medical care for prisoners at least equivalent
to that available to the general population. According to the United Nations Committee
on Economic, Social and Cultural Rights, “States are under the obligation to respect
the right to health by, inter alia, refraining from denying or limiting equal access
for all persons, including prisoners or detainees, minorities, asylum seekers and
illegal immigrants, to preventive, curative and palliative health services.”
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The UN Human Rights Committee has also interpreted the International Covenant on Civil
and Political Rights as requiring that governments provide “adequate medical care
during detention” and the Committee Against Torture has found that failure to provide
adequate medical care can violate the Convention Against Torture’s prohibition of
cruel, inhuman or degrading treatment.
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The United Nations Standard Minimum Rules for the Treatment of Prisoners (known as
the Nelson Mandela Rules) provide further protections.
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To address the risk in detention settings, detention centers must first and foremost
have plans in place to prevent or limit the outbreak of COVID-19, to protect the health
of all detainees, and to treat the disease should any detainee acquire it. Beyond
this, to achieve physical distancing and protect individuals at high risk, detention
centers should release individuals in detention who are arbitrarily detained as well
as asylum seekers, those in pre-trial detention, and migrant children. Detention centers
should also consider reducing their populations through appropriate supervised or
early release of detainees whose release may be soon or who are in pre-trial detention
for non-violent and lesser offenses or whose continued detention is in an equivalent
manner unnecessary or unjustified. Finally, individuals who are considered at high
risk for severe disease or death should be released or put into alternative forms
of custody if facilities cannot ensure their protection or care.
These are not impossible steps and some national and local governments are beginning
to take action. In Spain, immigration authorities began releasing people held in immigration
detention centers on March 18.
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In Belgium, federal authorities released an estimated 300 migrants from detention
on March 19 because detention conditions did not allow for safe physical distancing.
21
The UK government released 300 people from detention centers following legal action
which argued that the government had failed to protect immigration detainees and failed
to identify which detainees were at particular risk of serious harm or death if they
do contract the virus due to their age or underlying health conditions. In the United
States, in Alabama, prison officials announced that they are halting intake of inmates
from the state’s county jails for the next month.
22
In Chicago, Illinois, the Cook County Jail released several detainees deemed “highly
vulnerable to” COVID-19.
23
In Maine, the court system vacated all outstanding warrants (numbering over 12,000)
for unpaid court fines and fees and for failure to appear for hearings, to reduce
jailing.
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However, like everything related to this pandemic, more needs to be done faster. And
in lower-income countries which have yet to see a large number of cases, now is the
time to act. While these countries may have relatively fewer people incarcerated per
capita than middle- and upper-income countries, conditions are often worse, with severe
overcrowding, lack of medical facilities, and a high proportion of detainees who are
in pre-trial detention and who fall in high risk categories for severe COVID-19 disease
or death.
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Releasing detainees is a critical part of the COVID-19 response and is both good public
health and human rights policy.
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