Maintaining our humanity during the resurgence of COVID-19 requires us to remember the value of every human life. Unfortunately, incarcerated people may be overlooked by society during the pandemic, including by the very systems tasked with the care of people in prison. While many populations have been disproportionately impacted by COVID-19, it should not be lost that health care professionals have the ability to assist in mitigating such ethical reckonings. Specifically, health care professionals may have the unique ability to insist that prison medical policy be guided by medical and public health professionals for the benefit of persons in prison and carceral workers’ well-being. And from that perspective, it is worth noting what has occurred thus far for imprisoned people during the COVID-19 pandemic.
At least three in 10 people incarcerated or working in state and federal prisons have contracted COVID-19,resulting in more than 2,600 deaths. In the federal prison system alone, there have been more than 50,000 cases and nearly 250 deaths. The specific risks faced by those in federal prisons have drawn attention to a legal safety net known as compassionate release, which the Federal Bureau of Prisons (BOP) has long neglected. In that respect, the last year and a half has been no different. Due to recent modifications to the federal compassionate release law, many incarcerated people received relief directly from courts, and not the BOP, regarding COVID-19-related release. The novelty of receiving this relief emphasized the BOP’s adaptation to the public health crisis of COVID-19 in the prison system.
Another option for federal compassionate release in the federal prison system has resided with its respective wardens. The federal wardens have long had the option to request compassionate release from judges on behalf of certain incarcerated people, notably those that are terminally ill and older adults. However, federal wardens have rarely made such requests. Oftentimes, those incarcerated would die waiting for wardens to decide whether to request release. Previously, there was no way for those in the custody of the federal prison system to petition judges directly for compassionate release. If a warden refused to petition the courts on their behalf—or simply refused to decide—they had no further recourse.
In 2018, The First Step Act became law, creating a path for incarcerated people to go straight to the courts with their compassionate release petition 30 days after making an initial request to the warden. Before the 2020 pandemic, few made use of the First Step Act’s compassionate release provision. Yet, as COVID-19’s effects remained widespread, many incarcerated people began applying for compassionate release. Some received assistance from Families Against Mandatory Minimums (FAMM) whose work includes educating incarcerated people about compassionate release and connecting those people and their families with attorneys. Others had help from federal public defenders. But circumstances forced many to apply pro se (without the assistance of an attorney), a tremendous obstacle for an incarcerated person.
Some of these men and women were able to get relief from the courts. By proving “extraordinary and compelling circumstances” and ensuring that statutory sentencing considerations (such as maintaining community safety) were met, these individuals justified their early release—generally under the supervision of a probation officer. Most often, those incarcerated people who were released had a health condition rendering them particularly vulnerable to COVID-19.
Rarely, though, did the BOP intervene in court on anyone’s behalf. Recently, the BOP disclosed that prison wardens denied over 98 percent of compassionate release requests during the first months of the pandemic.Ultimately, the BOP did permit the temporary release to home confinement of about 4,500 people (out of a total prison population of more than 130,000), based on its separate authority under the CARES Act. However, nearly all these individuals were formerly in minimum-security camps. In April of 2020, former Attorney General William Barr directed the BOP to review the sentences of all incarcerated people with health conditions at increased risk of poor outcomes due to COVID-19. The BOP responded by considering pre-existing morbidity—and also by setting absolute barriers based on security designation and proportion of sentence served. As a result, no one from medium or high-security prisons, and few housed in low-security facilities—no matter how vulnerable—were released.
In addition, recall at the beginning of the pandemic, BOP officials tasked with making decisions to protect employees and incarcerated persons had no prior medical experience. Additionally, prisons were dangerously understaffed and not abiding by national BOP guidelines.This neglect demands the medical field take notice, as persons in prison deserve to have their medical needs met by medical professionals, in addition to conversations around compassionate release. The COVID-19 pandemic and its resurgence in the United States has underscored the importance of confronting these long-standing issues from the perspective of medicine, public health and ethics. With these pressing concerns in mind, we present several ways to assist those currently in prison.
First, spotlighting this public health crisis in the prison system and staying informed is vital. Many entities continue to evaluate the ethics of prisoner health and well-being, such as the Marshall Project. Public dissemination of such investigative reporting may help spur action. Second, creating ethics committees for each inmate health consultation entity will preserve present efforts for future public health crises in prisons. Ethics teams are available in many hospitals throughout the United States and offer insight into the morality of care when social conflicts arise.
Next, medical professional involvement should be demanded, as medical decision-making processes associated with health care and outcomes are complex. The medical care provided to patients in hospitals should be independent of their identity and with the focus to preserve life and allow for a return to one’s baseline quality of life. Similar staffing of ethics committees in the context of the prison system can assist with identifying prisoners with deteriorating health that warrants additional protections, treatment, or compassionate release. Further, establishing medical ethics committees for prison systems as a standard of care for inmate health care groups should strongly be considered, as it offers an opportunity to assure our morality is preserved as health crises ravage prisons.
Finally, political involvement on many levels can help align prisons with humanity. Electorally, we can identify, endorse and collaborate with candidates and elected officials who understand the importance of prison health. More broadly, we can also work toward deincarceration and dismantling of a prison system whose racism and inhumanity are well attested in scholarly literature.
Many of us deal quietly with the need to protect ourselves; some become vocal about protecting others. Fewer act to protect those who cannot defend themselves. In this case, it is crucial to protect those whom the legal-carceral system has marginalized. We hope the aforementioned guidance can assist those who would like to take part in this humanitarian effort. While persons in prison may be affected by laws fashioned by human beings, they still warrant protection against the wrath of nature. During the current public health crisis in prison systems, we call for imprisoned people not to be sacrificed.
Shira Kieval, J.D., is a public defender at the Federal Public Defender’s Office of Colorado and Wyoming.
Alexandria Soybel, B.S., is an intern at Medicine for the Greater Good at the Johns Hopkins University School of Medicine, Baltimore, Maryland.
Zackary Berger, M.D. is an associate professor at the department of medicine at the Johns Hopkins University School of Medicine, Baltimore, Maryland.
Panagis Galiatsatos, M.D., M.H.S. is an assistant professor at the division of pulmonary and critical care medicine and co-director of Medicine for the Greater Good at the Johns Hopkins University School of Medicine, Baltimore, Maryland.
The views expressed in this article are the writers’ own.