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

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. With Black communities destabilized by the continuing war on drugs, over policing, a school-to-prison pipeline, centralized power of prosecutors and drastic sentencing laws, Black people are more likely to face 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.

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, intervening to suppress outbreaks after they emerge rather than implementing strategies which prevent 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.