U.S. Prisons Under the COVID-19 Pandemic: A Human Rights Approach to Reformation

The International Covenant on Civil and Political Rights puts forward that “All persons deprived of their liberty shall be treated with humanity and with respect for the inherent dignity of the human person.” Conversely, the United States prison system, perhaps more aptly referred to as a capitalistic prison industrial complex, has emphasized profit and the punitive since its inception. The human rights violations common in overcrowded, largely privatized American prisons have only worsened with the advent of COVID-19, renewing national attention toward the abject horrors to which prisoners have been subjected during and preceding this pandemic.

United States prisons are widely regarded as ineffective, corrupt, and inhumane. They are designed as holding cells for the citizens for whom our economic system has necessitated impoverishment. Further, despite a desperate national need for greater investments in new technologies, higher education, health care, infrastructure and social services, politicians continue to funnel nearly two-hundred billion taxpayer dollars into the privately profitable prison industrial complex every year.

These systems of mass incarceration are one of the many blights of capital on this country, as billions of our dollars are spent on keeping innocent or nonviolent people in conditions unfit to live, rather than on social safety net programs that will afford people the means to live comfortably within legal parameters. High rates of recidivism and negligible impacts on public safety further delegitimate American prisons across the board, and still, they confine more people each year.

To look at it one way, about one out of every one hundred people in the United States is incarcerated. This is nothing when compared to the one out of every thirty-seven adults who are under correctional supervision in the United States. With a population that accounts for about five percent of the world ’s total, the U.S. has accounted for around a quarter of the world’s prisoners. There is neither respect nor inherent dignity embodied in this mass incarceration, particularly as racist justice systems target the poor and people of color in order to confine them to institutions of slave labor, torture, rape, and abuse.

The U.S. ratified Universal Declaration of Human Rights states in Article 5 that, “No one shall be subjected to torture or cruel, inhuman or degrading treatment or punishment.” The exact opposite has been the modus operandi and intention of the U.S. prison system for decades. Solitary confinement along with the myriad other barbaric, quotidian rituals of torture to which prisoners are subjected have traumatizing effects that impact entire communities and last lifetimes beyond sentences.

These abject breaches of the Human Rights Covenant and other human rights offenses that are routinely committed in prisons across the country have only been exacerbated by the COVID-19 pandemic. Correctional facilities already internally dealing with myriad other health crises were devastated by the novel coronavirus, and the five largest clusters of the virus known to date have been found in American prisons. “For the estimated 2.2 million people behind bars in the United States”, writes Jonah Walters for Jacobin, “the pandemic has been a period of intolerable cruelty and uncertainty.”

Human rights activists have long known that American prisons are in and of themselves cruel institutions that necessitate violence and traumatize for life the people they incarcerate, despite the length of their incarceration. Imprisoned people, predominantly people of color from communities exploited by capital and underserved by government, are forced into violent power dynamics in order to survive.

When he was fourteen years old, Lewis Clark from Rock Island, Illinois, stole a car. When he was sixteen, he was charged with the battery of a correctional officer and sentenced to four years in prison. While in prison, Clark was targeted by other prisoners as well as by guards. After weapons were found to be in his possession, he was sentenced to serve an additional twenty-nine years in the Stateville Correctional Center.

The systemic injustices with which Clark has been confronted since childhood have only worsened within the American penal system, and this experience is not uncommon in any way. This paper will return to the human rights implications of race and prisons in the United States, but for now we focus on the inherent right of prisoners to health care. For while inadequate health care is the standard for the free citizens of the United States, our prisoners are the only individuals who are substantively guaranteed health care as a right.

The Supreme Court has long established the constitutional obligation states have to provide their imprisoned people with health care, citing the Eighth Amendment’s injunction against “cruel and unusual punishment”. Still, because of the American endeavor into the global neoliberalization that occurred over the latter part of the millennium, there remains an alarming political appetite for privatization and deregulation in this area.

This is detrimental across public industries, but particularly to the already largely privatized American industrial prison complex wherein de facto “cruel and unusual punishment” is fomented in food rations, living conditions, health care, and more. This ubiquitous dereliction of human rights in the U.S. prison system at the behest of profit became particularly salient in the wake of COVID-19 as conditions took a steep nosedive.

Although he is expected to be released in early 2023, Lewis Clark contracted COVID-19 while serving out his unjustly protracted sentence, and continues to receive minimal care under horrific conditions. Clark recounts to journalist Eleanor Tabone with WQAD-TV Channel 8 a desperate setting in which prisoners who have tested positive for the virus are isolated in cockroach infested areas with no hot water or sanitizer.

At the onset of Clark’s symptoms, he was racked with chills and a cough. He was cold and it burned to breathe. When he was finally able to relay this to a nurse, she laughed at him, suggesting that he may only receive treatment when he is “almost dead”. Once isolated in the treatment facility, Clark was seen infrequently by medical staff and describes the facility’s floor as “flooded with feces and urine”. He is suing the prison for violating his rights.

In other facilities, such as Rikers Island, prisoners are maced for their concerted pleas for medical attention. Again, these observations in the context of the pandemic are exemplifications of common atrocities in U.S. prisons and jails, and are in no way exceptions to any rules of procedure. “A report by Disability Rights Oregon has found that prisoners in the Behavioral Health Unit at the State Penitentiary are routinely tasered, pepper-sprayed, isolated, and denied access to adequate mental health care.”

Moreover, researchers at the NAACP found that “infectious diseases are highly concentrated in corrections facilities. 15% of jail inmates and 22% of prisoners - compared to 5% of the general population - are reported having tuberculosis, Hepatitis B and C, HIV/AIDS, or other STDs.”

Another study found that “People leaving jail and prison typically return to communities characterized by poor health outcomes and limited access to primary care. Controlling for a range of factors that affect health, counties with higher incarceration rates have 3 percent higher mortality rates compared with communities with low incarceration rates.” Of course prisons in the United States were unequipped to appropriately and humanely respond to COVID-19.

While on the inside, prisoners struggle to get appointments for the care they need through third party contractors. Furthermore, as prisons are overcrowded, they are understaffed. In consequence, the needs of many in our most vulnerable population slip through the cracks, and people are left for dead. Moreover, when they can attain medical attention, prisoners in most states are required to settle co-pays that can be a hundred dollars while they make cents and hour laboring for the state. Health care is not a right if it is not accessible to the right bearer.

Moreover, all citizens have a moral right to science as the property of the people, and we have a right to the resources working people create for each other. Therein, any number of sound arguments could be made for the early release and vaccination of our imprisoned population. Schools of thought that genuinely espouse the tenets of international human rights should only conclude the correctness of vaccinating the most vulnerable populations first, including those in prisons and in countries other than our own.

Article 6 of the U.S. Constitution provides that “All Treaties made, or which shall be made, under the Authority of the United States, shall be the supreme Law of the Land; and the Judges in every State shall be bound thereby, any Thing in the Constitution or Laws of any State to the Contrary notwithstanding.” After, at long last, the U.S. ratification of the Universal Declaration of Human Rights in 1992, there has been no excuse for the country to do anything but to honor its compact and to promulgate human rights to the best of its ability.

Researchers for the Pace Law Review found that “The main obstacle to successful use of conventional human rights standards is that the U.S. has attached reservations to treaties it has ratified, and has argued that such treaties are not applicable unless Congress passes enabling legislation.” While this may be true, the utilitarian case for things like early vaccination and early release, especially during a pandemic, is cogent as ever.

Releasing prisoners, for instance, would not only relieve a vulnerable population internally, it would relieve a great deal of pressure from nearby hospitals, particularly in rural areas. Dr. Homer Venters, a former chief medical officer of the New York City jail system, corroborates this view in an interview he did for PBS News Hour, citing the successful use of early release in many areas as a “critical tool” in preventing local hospital systems from becoming overwhelmed. Taking this a bit further, Martin Horn, a former New York City corrections commissioner told ABC News in a recent interview that “… nobody has invented a more effective vector for transmitting disease than a city jail.”

The ongoing pandemic has exposed only a few of the injustices faced by prisoners normally, especially in relation to their medical care, but these are neither isolated incidents nor are they independent of the systemic racism that continues to allow COVID-19 to devastate communities of color outside of prisons as well as in them. A study out of the National Urban League found that Black Americans are three times more likely than whites to contract the virus, with an even higher rates among Latines.

What’s more, Black, Latine, and Indigenous people in America have experienced hospitalization rates at nearly six times that of non-Hispanic whites, according to CDC data. Naturally, this paradigm was easily translated into the U.S. prison system, where Black and Hispanic people comprise vastly larger shares of prisoners than they do of the population at large. This is and has always been a direct affront to international human rights on the part of the United States.

Two articles of the Universal Declaration of Human Rights strike me as remarkably relevant here. First, Article 7 which states that “All are equal before the law and are entitled without any discrimination to equal protection of the law. All are entitled to equal protection against any discrimination in violation of this Declaration and against any incitement to such discrimination.” In the praxis of U.S. humanitarianism, this article is eschewed in ways that require no further explanation.

Article 9, then, provides for the right that no one should be arrested arbitrarily. Using Portland, Oregon as an example, we know that in the last year alone, nearly a quarter of all nonmoving violation stops were for Black drivers while Black people demographically comprise less than six percent of the city. Obviously, the human rights enumerated in the Universal Declaration of Human Rights, and even those that are reflected in the U.S. Constitution, are contemned in the actions of the United States government. The injustices therein, however, have not gone wholly unnoticed until now.

The prisoner’s rights movement essentially began alongside the civil rights movement, as progressive lawyers were incensed by the treatment of their clients. The Attica Prison riot, wherein forty-three people lost their lives, catalyzed the movement in 1971. The millennium brought with it, however, more conservative courts that were less keen to consider human rights implications in cases, as they were more concerned with political agendas.

The earliest Supreme Court reference to the applicability of an international human rights precept to a prisoner’s case can be found in Estelle v. Gamble, where, in 1976, the Standard Minimum Rules for the Treatment of Prisoners were established by the Court. These standards have been touted by the Court as being “…significant as expressions of the obligations to the international community of the member states of the United Nations.” And yet, American prisoners to this day are among the most underserved citizens of any contemporary democracy in the world.

Regardless of a person’s conviction, their Medicaid coverage and disability benefits are immediately revoked upon being booked into a jail. This is yet another of countless examples of how a cycle of poverty, and the crime it necessitates, is perpetuated in the United States in defiance of Article 7 of the Universal Declaration of Human Rights. When single mothers and other underserved individuals in this country are prosecuted for their poverty, their families and surrounding communities suffer. The scarcity and crime and stigma experienced among the racially targeted in America are all maintained by a neoliberal state and the capitalistic economy that state uses to exploit the majority of its poor and working class in order to bolster a hostile oligarchy and its institutions of profit.

Prisons in the United States are nothing more than racist establishments of slave labor beholden to privatization, capital, and the tenets of neoliberalism. The people they confine are dehumanized and humiliated, often irreparably. This degradation is compounded in antagonistic denials of medical care, healthy food, and livable conditions, and is in direct opposition to the human rights doctrines to which the United States has agreed to uphold.

Again, the most germane right in this field may be found in the Universal Declaration of Human Rights, Article 5, which states that “No one shall be subjected to torture or to cruel, inhuman or degrading treatment or punishment.” Similar wording can be found in the European Convention on Human Rights, the African Charter on Human and People’s Rights, and the Inter-American Convention on Human Rights. It can also be found in the Constitution.

And so, we are left with a human rights crisis in the most populous and profitable carceral system in the world, in a country that hoards most of the resources in the world. Therefore, the response to this crisis need not be utilitarian, although the arguments therein for the early release and early vaccination of prisoners are significant. The response to this crisis, then, must be aligned with a broader picture, framed by international human rights doctrines and precedents.

Researchers found that by the end of 2020, one in five prisoners contracted COVID-19, and even so, early release was never a serious consideration at the state level. At the federal level, only two percent of compassionate release requests were approved. In fact, in some states, prison populations even swelled as the pandemic intensified.

The coronavirus, for all it has done, has also provided an opportunity to critically examine the prison system in the United States through a humanitarian lens. If we cannot uphold the basic tenants of internationally sanctioned human rights, we cannot legitimately withhold the liberty of our citizenry in any context. And while prison abolition in the name of human rights may be a far cry from consensus, steps toward reform that would better align the U.S. prison system with international precepts of human rights are not in any way unapproachable.

Imprisoned citizens should be among the first to receive the COVID-19 inoculation, and early release should be extended liberally in the interest of decongesting a system that was already overwhelmed by a slew of health crises. Beyond this, we can begin to entertain criminal justice reform in concurrence with legislative reform and prison abolition, but only after setting precedents through correcting specific instances of human rights violations like those of Lewis Clark.

Again, the International Covenant on Civil and Political Rights puts forward that “All persons deprived of their liberty shall be treated with humanity and with respect for the inherent dignity of the human person.” If the United States prison system cannot or will not find this humanity during the most devastating phenomenon in political eons, the ramifications for human rights around the world are, in a word, frightening.

Photo: Cloe Poisson. Notes on request.