MICHAEL CONKLIN, Powell Endowed Professor of Business Law, Angelo State University – San Angelo, Texas
Anti-mass-incarceration advocates are using the coronavirus epidemic to argue for the early release of inmates. Class action lawsuits on behalf of inmates include accusations of “deliberate indifference to the severe and obvious risk of rampant infection and death that COVID-19 poses . . . .” And the strategy is working. By mid-April over 16,000 inmates had already been released.
But despite these results, using coronavirus safety concerns to release inmates is a highly peculiar tactic. Doing so will clearly reduce coronavirus deaths among the inmate population, but that does not necessarily translate into a reduced probability of released inmates dying from coronavirus. This is because the coronavirus death rate in prison is significantly lowerthan the death rate in America as a whole (180 per million versus 309 per million, respectively). Therefore, the coronavirus safety issue—properly understood—serves to undercut the anti-mass-incarceration movement’s efforts since inmates are safer in prison.
Furthermore, even this nearly 2:1 ratio likely understates the disparity of coronavirus deaths among incarcerated versus free people. This is because coronavirus disproportionately affects African Americans and the poor. Given the disproportionate number of African Americans incarcerated and the current abysmal economic climate, released inmates are going to be significantly more at risk from coronavirus than the average population.
This situation is illustrative of how opportunistic attempts at exploiting a tragedy can backfire. Anti-mass-incarceration advocates are well advised to stick to the facts that support their side. Fortunately, there are many, including fiscal costs, long-term effects of family separation, inadequacy of counsel, sentencing disparities, coercive plea-bargaining tactics, and racial inequalities.
Sarah Stillman, Will the Coronavirus Make Us Rethink Mass Incarceration?, New Yorker (May 25, 2020), https://www.newyorker.com/magazine/2020/05/25/will-the-coronavirus-make-us-rethink-mass-incarceration.
Dan Kane, Inmates File Coronavirus Lawsuit Seeking More Releases from Burner Federal Prison in NC,News & Observer (May 26, 2020), https://www.newsobserver.com/news/coronavirus/article242994201.html.
Sadie Gurman & Zusha Elinson, Coronavirus-Driven Prisoner Releases Spur Debate over Public Health Versus Public Safety, Wall St. J. (April 14, 2020), https://www.wsj.com/articles/prisoner-release-orders-spur-debate-pitting-public-health-against-public-safety-11586862003.
As of May 27, 2020, 101,346 out of 328.2 million Americans have died from coronavirus, and 415 out of 2.3 million inmates have died. A State-by-State Look at Coronavirus in Prisons, Marshall Project (May 22, 2020), https://www.themarshallproject.org/2020/05/01/a-state-by-state-look-at-coronavirus-in-prisons.
Liz Szabo & Hannah Recht, The Other COVID-19 Risk Factors: How Race, Income, ZIP Code Can Influence Life and Death, USA Today (Apr. 22, 2020), https://www.usatoday.com/story/news/health/2020/04/22/how-coronavirus-impacts-certain-races-income-brackets-neighborhoods/3004136001/.
“This is because the coronavirus death rate in prison is significantly lower than the death rate in America as a whole (180 per million versus 309 per million, respectively).”
16.5% of the general US population is over 65 years of age, versus 2.8% of the US prison population.
Differences in the rate of death in prison to that of the general public is confounded by several differences in demographics, not the least of which are the older average age and greater presence of obesity among the non-incarcerated, two of the leading comorbidities of COVID-19. It’s not “being in prison” that leads to the lower rate of death: it is the differences in demographics among prisoners versus the general public.
Prisoners often do not have space to socially distance. Prisons do not have ample single-occupant cells to separate their inmates, and the air is often unfiltered between cells. Sadly, the data are clear: as of this writing, 1 in 5 prisoners in the US has contracted the virus versus 1 in 20 of the US population (source below).
Forcing a disease on the incarcerated is cruel and unusual punishment. Avoiding reckless endangerment of life is not an “opportunistic attempt at exploiting a tragedy” – it is the humane thing to do.
The notion that “inmates are safer in prison” is beyond false: it is dangerous if taken seriously by policymakers. Dr. Conklin, please do the right thing and retract your article on the grounds of faulty logic.