The Washington PostDemocracy Dies in Darkness

If we want to stop covid-19, we can’t forget the incarcerated

Imprisoned people are especially at risk

Philadelphia protesters on Monday call for officials to release people from jails, prisons and immigration detention centers in response to the coronavirus pandemic. (Matt Rourke/AP)
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New York Gov. Andrew M. Cuomo (D) has received praise for his handling of covid-19 from most corners, but over the past two weeks, he has endured criticism for failing to adequately address the public health danger facing the state’s incarcerated population. While Cuomo announced Friday he would order that more than 1,000 low-level parole violators be let out of jails as a means of alleviating the threat of the novel coronavirus, many argue that further action is necessary.

Across the country, as officials face news of the first death of a federal inmate from covid-19 and grapple with how far to go to decrease prison and jail populations via tactics such as home confinement and compassionate release, they might find inspiration for action in a lawsuit filed against Cuomo’s father 30 years ago.

In 1990, a group of HIV-positive people incarcerated in New York sued state officials, including then-Gov. Mario Cuomo. Some said they were denied access to physicians, necessary prescription medications and adequate food. One, whose condition left him weakened and with no control over his bowels and bladder, reported that he was “frequently left to lie in his own urine and feces.”

Covid-19, the disease the coronavirus causes, differs in many ways from HIV/AIDS, but the 1990 lawsuit underscores important realities about the disproportionate impact of disease outbreaks on incarcerated people, who lack control over their living conditions and have limited access to often substandard medical care. The suit should remind officials that while people in prisons may be some of the least visible among the millions facing the global pandemic, they are, quite literally, at the mercy of the government. And they and their advocates are entitled to use the legal system to ensure the protection of their rights and their lives.

The 1990 New York lawsuit was hardly an anomaly. It came after a decade when President Ronald Reagan answered the HIV/AIDS crisis mainly with silence, endangering hundreds of thousands of lives while leaving state and local governments to fend for themselves.

Mario Cuomo was more proactive than many fellow governors during the early days of the epidemic, moving to help and protect HIV-positive New Yorkers. But his actions had little impact on incarcerated people with the illness who, like their counterparts across the country, endured life-threatening hardships.

Between 1980 and 1990, when the general prison population doubled from about 300,000 to more than 600,000, and misconceptions were prevalent about how HIV/AIDS was transmitted, many state corrections systems segregated people with AIDS from the general prison population, restricted them from participating in educational and work programs and failed to protect them from abuse.

Prisoners rights advocates from groups like the Legal Aid Society, which filed the 1990 suit, could point to data supporting claims of neglect, if not mistreatment. In 1988, for example, the New York State Department of Health reported that people incarcerated in state prisons who were diagnosed with AIDS before 1987 had a median survival period of 212 days, as opposed to a survival period of 347 days for New Yorkers with HIV/AIDS who lived outside of prisons. “Further study is needed,” the report concluded, “to determine if the poor survival of inmates with AIDS is related to circumstances peculiar to incarceration.”

The connection was definitive, according to the 1990 lawsuit. The state prison system, it said, failed “to prioritize the health care needs of plaintiffs,” which resulted in “untimely and haphazard provision of care, or outright denials of care.” New York also “failed to provide sufficient resources to assure that prisons had access to medical specialists.” In addition, the state had neglected to provide follow-up care and skilled nursing, hospice or emergency services. Finally, it had not offered people in prisons “sufficient information about the nature and course of their illness” and had ignored the “extreme emotional anguish” of those who tested positive for HIV.

Such offenses, the Legal Aid Society argued, demonstrated unlawful treatment — “deliberate indifference” and “cruel and unusual punishment,” in violation of the Eighth Amendment. The case not only called attention to shortfalls in the treatment of a particular disease, but also offered an indictment of the entire medical apparatus of the state’s Department of Corrections.

The Legal Aid Society’s claims — like those of many health-related “conditions of confinement” suits before and since — relied in part on ideas from the 1976 Estelle v. Gamble Supreme Court decision, which helped establish that people in prisons have a right to adequate health care.

Decades after Estelle — and the New York HIV/AIDS case — allegations of substandard and inhumane conditions and care in prisons have remained commonplace in a country where more than 2 million people are incarcerated. Imprisoned people and their advocates have sounded alarms about a range of issues, including the failure of private companies to provide adequate access to medical professionals and services, even as the companies profit from state contracts and the dysfunction and non-responsiveness of bureaucracies that cause preventable deaths and health conditions to worsen.

Those sorts of allegations will doubtless gain attention, and multiply, in the face of covid-19.

The fate of the 1990 lawsuit is instructive. While it took until 2007, a final settlement stipulated that New York would pay plaintiffs damages and attorney’s fees and implement new practices related to care for incarcerated people with HIV/AIDS. That outcome underscores the reality that prisons — and the governments that fund them — are liable for inmates’ health care and that they could face penalties if authorities don’t act to safeguard incarcerated people from covid-19.

Beyond that pragmatic point, it is worth considering what the 1990 lawsuit had to say about those who had lost their lives to AIDS while in prison: In the face of a threatening epidemic, the state had withheld “the compassion expected of a mature society.”

State officials battling covid-19 can avoid similar allegations by taking seriously proposals to release elderly and sick people who are at risk of contracting and passing on the virus while incarcerated and who are, as Kevin Ring of Families Against Mandatory Minimums puts it, “a larger threat to the health of corrections institutions than to public safety.” Public health experts further recommend granting early parole to people who are scheduled to be released within 180 days and furloughing low-risk inmates. Such actions, they argue, do not undercut public safety and are, in fact, a matter of life or death.

While politicians like Cuomo are understandably focused on the big picture — the needs of hospitals and health professionals, as well as the myriad and complex ways that covid-19 threatens millions of their constituents — they must also remember the unique threat the pandemic poses for the incarcerated people under their charge.