COVID-19 infections in the prison system concern us all

By Andrea Armstrong

At  a July 8 press conference, Dr. Alex Billioux, assistant secretary of health for the Office of Public Health, attempted to explain why the Louisiana Department of Health (LDH) does not provide independent data on COVID-19 in Louisiana prisons and jails.  First, Billioux said prisons and jails are not public health risks because they are “contained.” Second, he explained LDH is not required by federal law to report on COVID-19  in prisons and jails, in contrast to mandatory reporting for nursing homes, which are also a “contained” site.  His reasoning is not only wrong, it is also dangerous to public health in our state.

Prisons are not “contained.”  Every month in Louisiana, approximately 3,000 people are released from state custody because they have finished serving their sentence.  This is in addition to likely thousands of people released from sheriff-operated jails, which have higher turnover rates as some people are released pending trial on their own recognizance or pay bail or bonds.  All of those released return home to their families and communities.  The Louisiana Department of Public Safety and Corrections (DOC) employs 15,000 people to operate eight state prisons. Thousands more are employed by local sheriffs.  And they return home every night to their families and communities, too.  Those very same employees then return to the prison, perhaps infected but asymptomatic, leading to a cycle of COVID-19 infections in detention facilities and neighboring communities across our state.

Prisons are not “contained” but are instead mini-cities scattered in over 100 locations across Louisiana.  Prisons, jails, and detention centers hold approximately 50,000 people statewide, 15,000 of whom are in state operated prisons.  COVID-19 behind bars impacts us all.

We need COVID-19 data from prisons and jails just as urgently as we need that data from nursing homes. The federal government, through the Centers for Medicare & Medicaid Services, requires data reporting and collection for nursing homes because the elderly are a vulnerable population with a higher risk of COVID-19-related complications.  Similarly, incarcerated people are also at higher risk of infection and death from COVID-19 than the general public.

New research from the Journal of the American Medical Association found that incarcerated people are five and a half times more likely to be infected and three times as likely to die from COVID-19 as someone who is not incarcerated.  A new study of Cook County Jail in Chicago found that “arrest and jailing practices are augmenting infection rates in highly policed neighborhoods” and are associated with almost 16 percent of infections statewide.  Public health officials, including at the Centers for Disease Control & Prevention, widely acknowledge that prisons and jails present “unique challenges” to the prevention, detection, and treatment of COVID-19.

On July 9, in response to specific media questions, and months after the start of this pandemic, the Department of Corrections updated its COVID-19 dashboard to include the number of tests performed. The update confirms my prior back-of-the envelope calculations that 42 percent of the 1,500 people in prisons tested to date are positive for COVID-19. Prior to the update, we had to rely on buried, outdated numbers reported to the Louisiana BEOC that showed infection rates in Louisiana prisons are far worse than for the general public.

As of June 29, Louisiana prisons had a 41.7 percent positivity rate for incarcerated people (626 positive out of 1501 tests) and a 17 percent positivity rate for staff (195 positive out of 1117 tests). Our positivity rate for the general non-incarcerated public was less than 10 percent at that time, and it’s the state’s goal to keep the rate for the general public below 10 percent.

DOC’s newly released data also tells us that between the end of June and July 9, people in prisons were not being tested.  In May, LDH recommended comprehensive testing for everyone in “congregate settings,” i.e. communal living situations like nursing homes, prisons, and jails.

Also, we still don’t have accurate and up to date COVID-19 data for the approximately 34,000 inmates  not in a state prison, including 16,000 people housed in local jails on the behalf of DOC.  There is no statewide COVID-19 dashboard for those local jails, which are independently run by local sheriffs and only a few jails, such as the one in  New Orleans, publish limited COVID-19 data on their websites.  The dashboard for the Office of Juvenile Justice, which administers four youth prisons, also does not publish testing data sufficient to determine positivity rates.

That’s why LDH must collect and publish robust information on COVID-19 testing, infections, and deaths in Louisiana prisons and jails and do so of its own volition.  A federal mandate is unlikely since Medicare/Medicaid does not insure people in custody.  However, the lack of a federal requirement hasn’t prevented other states from operating transparently and providing actual data on COVID-19 in prisons.  Alabama, for example, publishes facility-specific data for its prisons, including the number of tests performed and the number of positive results for incarcerated people and staff.

Also, LDH could do so much more than just publish data.  Voice of the Experienced, an organization of people directly impacted by incarceration, has called for a more robust role for LDH, including using its legal authority to inspect, monitor, and prescribe emergency rules to contain the COVID-19 pandemic in detention facilities.

The public health of our state is irrevocably linked with the health of people who are incarcerated. Publishing this data is essential to assessing whether state and local resources are being directed to those most in need, as well as providing critical information to families and surrounding communities.  Refusing to collect and provide the public with up-to-date and accurate data about COVID-19 in prisons and jails elevates politics over people and prioritizes secrecy over public health.

Professor Andrea Armstrong joined the Loyola University New Orleans, College of Law faculty in 2010.  She is a leading national expert on prison and jail conditions and is certified by the U.S. Department of Justice as a Prison Rape Elimination Act auditor.  Her research focuses on the constitutional dimensions of prisons and jails, specifically prison labor practices, the intersection of race and conditions of incarceration, and public oversight of detention  facilities.  She teaches in the related fields of constitutional law, criminal procedure, law and poverty, and race and the law. In 2019, Prof. Armstrong also received a three-year Interdisciplinary Research Leader grant from the Robert Wood Johnson Foundation, shared with the Voice of the Experienced and LSU Center for Healthcare Value and Equity, to examine the effects of incarceration on health service use in Louisiana, currently a global and national leader in incarceration rates.