ACLU Warns That Jails Could Double US COVID-19 Deaths

By Stewart Bishop
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Law360 (April 22, 2020, 7:45 PM EDT) -- The American Civil Liberties Union on Wednesday warned that U.S. fatalities from the COVID-19 pandemic could be almost twice as high as U.S. government estimates unless drastic action is taken to lower the jail population.

According to an epidemiological model from the ACLU and researchers from Washington State University, the University of Pennsylvania, and the University of Tennessee, an estimate from the Trump administration that fewer than 100,000 Americans will die from the coronavirus may represent half the actual death toll if jails continue to operate as usual.

"What our model tells us with near certainty is that ignoring jails in the public health measures taken to mitigate COVID-19 spread will result in the substantial undercounting of potential loss of life," the ACLU said in a report released Wednesday.

Due to the omission of jails from most public models, the ACLU says the government is failing to account for the virus' impact on the incarcerated population, which will suffer higher infection and death rates than the population at large. Compounding matters is that any jail outbreak will spill over into communities outside jails, the ACLU says.

The report estimates if arrests are halted for all but the most serious crimes, such as murder, rape and aggravated assault, and release rates are doubled for those already detained, 23,000 people in jails and 76,000 in the surrounding communities could be saved.

If arrests were ceased for minor offenses alone, 12,000 individuals in jail could be saved, with another 47,000 people in surrounding communities, according to the ACLU's model.

The report comes on the heels of several lawsuits brought by the civil liberties group that aim to reduce inmate populations in various jails and prisons as well as the detainee population in U.S. Immigration and Customs Enforcement facilities.

According to the ACLU, jails can serve as virus incubators for the larger communities in which they exist. There are 737,900 people in a U.S. jail on any given day, most of them pretrial detainees, and individuals who are arrested can be exposed to COVID-19 and then infect their families and communities upon release.

The same holds true for the 420,000 people who work in jails and prisons, the ACLU says. They can be exposed to COVID-19 in the workplace and return home to potentially infect their families and others, the ACLU says.

The ACLU says the status of the U.S. as the biggest jailer in the world, with 4% of the global population but 21% of incarcerated people, also means that relying on models and data regarding infection in other countries like Italy, China and South Korea will end up lowballing the estimated death rate in the U.S.

The risk to the U.S. jail population is enhanced by the system's substandard conditions compared with those in other Western and European countries, according to the ACLU. Poor health care, overcrowding and a lack of facilities that allow for recommended hand-washing and surface cleaning can make it possible for the virus to spread, the report says.

The report makes several recommendations to lower the U.S. jail population. For example, the ACLU says chief judges or administrative judges can direct the judges in their states to void or suspend arrest warrants for failing to appear in court, failure to pay, and technical probation or parole violations. Judges can also order pretrial release in all cases that don't involve a risk of flight or the risk of imminent serious harm to another person, the report says.

Prosecutors could also stem the tide by declining to push for custodial arrests in low-level cases, recommending pretrial release in all cases without a risk of serious, imminent harm to another person and identifying detainees who meet this criteria, according to the report.

--Editing by Janice Carter Brown.

For a reprint of this article, please contact reprints@law360.com.

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