Daniel S. Harawa is an assistant professor of practice and director of the Appellate Clinic at Washington University in St. Louis School of Law. Ben Miller is a senior legal counsel at the Justice Collaborative, a nonprofit organization working to reform the criminal legal system.

It is no secret that jails are particularly vulnerable to the spread of the novel coronavirus. Given the peril that people in jail face, public health experts have called for the reduction of jail populations across the country. In a recent op-ed, D.C. Attorney General Karl A. Racine (D) has said that prosecutors “can and should use their discretionary authority to decrease the number of people in jails and prisons by immediately limiting the number of people prosecuted and unnecessarily detained pre-trial.” In an open statement, Racine recognized his “obligation” “to step up in this time of growing public health concerns to address the needs and rights of individuals in these facilities.”

Racine’s call for action is laudable. However, his words have yet to translate into action. There are more than 1,500 men and women detained in the District’s jail. Many have not been convicted of any crime and are presumed innocent. Others are serving short sentences for minor offenses and are scheduled to be released in the coming weeks and months. Yet these people remain at risk of a death sentence.

In an effort to save those at the jail from the spread of the deadly virus, the Public Defender Service for the District of Columbia and the American Civil Liberties Union for the District of Columbia filed a class-action lawsuit against the District’s Department of Corrections (DOC). The suit demands that DOC take immediate steps to remedy the horrific conditions at the D.C. Jail.

Declarations from the suit paint a nightmarish picture. They tell the story of a jail where men and women are locked in unventilated units without soap, hand sanitizer or basic cleaning products as they watch their cellmates and others run high fevers and cough constantly. They reveal requests for medical care are often met with delay or silence. These men and women are trapped in dirty cells with sick cellmates who sleep, eat and use the restroom no more than a few feet from where they lay their heads at night. Despite Racine openly discouraging “the use of widespread lock-downs or solitary confinement as a containment measure,” the District’s jail has implemented a policy allowing people out of their cells for only 30 minutes a day.

The conditions in the District’s jail are so abysmal that the union representing the corrections officers announced it would participate in the class action in support of the plaintiffs — i.e. people detained at the jail. As stated by the law firm representing the union: “DOC management has created an unconscionable public health crisis, and almost certainly guaranteed and accelerated the rampant spread of COVID-19 within the DOC facilities and the communities in which the staff live.”

The Attorney General’s office continues to defend the DOC despite DOC staff members expressing they have no faith in the DOC’s handling of the crisis. DOC has resisted the plaintiffs’ requests for an independent health expert to monitor the jail’s response to covid-19. And outside the lawsuit, Racine’s office has stymied defense attorneys’ attempts to document the jail’s unsanitary conditions by fighting subpoenas for surveillance video footage. As Yale Law School Professor Judith Resnik wrote, “protecting” people in jails from “pandemics is not just a ‘should’ or an ‘ought’ but a ‘must’” and failure to do so is cruel and unusual punishment. Right now, the D.C. jail is failing, leaving the entire city vulnerable.

As the District’s chief law enforcement officer, Racine must advance the policies for which he so stridently advocates on paper. He can lead the DOC to reduce the jail population and provide safe and sanitary conditions. He can work with the class-action plaintiffs to ensure their safety, rather than defending the status quo. And he can guarantee transparency of the process by complying with defense attorneys’ subpoenas for video footage and allowing an independent public health expert to assess conditions inside the jail.

There is no time to waste. Experts predict that the District is likely the next hotbed of infection. Already, 18 people in the D.C. Jail have tested positive for covid-19. If jails in other jurisdictions are any indication, that number is about to explode. As Racine said in his op-ed, he has an obligation to keep people in the jail safe. Hopefully he takes this obligations seriously, or else the consequences for those in the jail, and the entire city, may very well be deadly.

correction

An earlier version of this piece misspelled Judith Resnik's name. This version has been updated.

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