Lawyers argue that keeping inmates in jails during a pandemic amounts to unconstitutional cruel and unusual punishment.
A single state prison in Arkansas accounts for more than a third of that state’s total number of coronavirus cases, with at least 681 confirmed cases out of the state’s approximate total of 2,300, illustrating the danger the pandemic poses in close-quarter correctional facilities across the United States.
The Cummins Unit, located roughly 50km (30 miles) from Pine Bluff, Arkansas, had its first confirmed coronavirus case on April 11. With more than half of the jail’s roughly 1,200 inmates now confirmed positive for the virus, it has one of the highest-known per capita infection rates of any jail or prison in the US.
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Now, lawyers with the American Civil Liberties Union (ACLU), the NAACP Legal Defense and Education Fund (LDF), the law firm Squire Patton Boggs and a number of other groups have sued Arkansas Governor Asa Hutchinson and the Arkansas Department of Corrections, asking that high-risk inmates there be released or allowed into home confinement during the pandemic.
The lawsuit alleges that keeping the inmates in prison violates the Eighth Amendment to the US Constitution, which prohibits cruel and unusual punishment.
“The startling viral outbreak in the Arkansas prison system places thousands of incarcerated people at risk of serious illness or death, but this crisis extends far beyond prison walls. It is only a matter of time when the virus will spread from prisons to the surrounding communities, depleting scarce healthcare resources,” Jin Hee Lee, senior deputy director of litigation at the NAACP (the National Association for the Advancement of Colored People), said in a statement about the complaint.
The number of US coronavirus cases topped 826,000 on April 22, and more than 45,000 people have died since the outbreak began. The coronavirus and the disease it causes, COVID-19, are dangerous to all ages but particularly impact older individuals and those with pre-existing conditions.
Studies show the US incarcerated population, which numbers over two million on average, suffers from pre-existing conditions at much higher rates than the general population.
“Currently, incarcerated people make up at least one in three confirmed COVID-19 infections statewide”, attorneys wrote in the complaint, saying even this number was likely an underestimation due to a lack of widespread testing.
Lee stressed that the coronavirus disproportionately affects Black Arkansans, who are infected with and die from COVID-19 at double the rate of the rest of the state population. “This racial disparity will deepen from viral outbreaks in prisons, which are mostly located in Southeastern Arkansas where there are higher concentrations of Black residents,” Lee said.
The complaint is filed on behalf of 11 prisoners in several Arkansas jails and prisons, and alleges that conditions behind bars fall short of guidelines for helping stop the spread of the virus issued by the US Centers for Disease Control and Prevention.
Some inmates “interact with well over a hundred people each day” without personal protective equipment such as masks and gloves, the complaint alleges. “Beds are within three feet of one another, far short of the recommended six feet,” the complaint says.
Alfred Nickson, one of the plaintiffs in the case, is a 61-year-old imprisoned at the Cummins Unit for second-degree murder who suffers from diabetes, rheumatoid arthritis and osteoarthritis, according to the complaint. Another inmate lives in the cell with Nickson, where they share a toilet and sink.
They have not been provided personal protective equipment or hand sanitiser, the complaint claims.
Nickson has allegedly suffered from several COVID-19 symptoms, including shortness of breath, fatigue and coughing. He has allegedly not been tested for the disease, in spite of his age and symptoms.
Prayer for relief
The lawsuit seeks to force the state to allow eligible inmates in the high-risk category to be released to home confinement and issue new rules that would allow inmates to keep two metres (six feet) of distance away from one another – as well as allowing them to have consistent access to hand sanitiser, clean laundry and sanitary personal hygiene facilities such as showers.
Governor Hutchinson said on April 19 that the outbreak at Cummins has caused him to ask for the review of records of about 2,000 inmates for early release, a measure increasingly being taken by jails and prisons across the US to help mitigate the impact of the virus. The number was later revised downward to allow for the release of roughly 1,700 non-violent, non-sex offenders over the next six months.
Hutchinson’s office did not immediately reply to Al Jazeera’s requests for comment, but he said in a press conference on Tuesday that Arkansas is going to “extraordinary lengths” to make sure inmates are protected. The measures include expanded testing at Cummins and ensuring that “inmates are having the proper health protocols in that environment”.
Advocacy groups want more.
“The governor’s statements regarding their efforts are undercut by the state’s own data,” NAACP Senior Counsel Ajmel Quereshi told Al Jazeera.
“As they have stated, prisons are particularly vulnerable to the virus. Serious action requires not only testing at the Cummins Unit, which should have happened long before things reached this point, but the other requests plaintiffs have made in the case”, Quereshi said.
“Without stronger action by state officials, Arkansas’s overcrowded prisons are becoming a humanitarian and public health catastrophe,” said Holly Dickson, legal director and interim executive director at the ACLU of Arkansas.
“It is critical that state officials heed the advice of public health experts and immediately reduce the state prison population to a level where social distancing is possible”, Dickson concluded.
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