Dozens of inmates here, many walker and wheelchair bound, suffering from diabetes, including a man with one lung – conditions that make them extremely susceptible to extreme suffering and death if they are infected with COVID-19 – have been summarily rejected for release with a form letter by the warden. It is clear she is washing her hands of any accountability for the situation. When asked about the rejections, inmates were told by staff that they are following First Step Act guidelines. They have no idea that the CARES Act overrides the First Step Act in many ways. Staff here apparently have no motivation to pursue any kind of release strategy based on what is stated in the CARES Act. They claim to have received no guidance on the implementation of this act and its significance as a response to the coronavirus pandemic. While the rejected inmates still have recourse to the courts to argue for their release, the outcome seems extremely uncertain. It is not likely that the courts will rush to deal with these cases given the multiple extenuating situations now overtaking society.
It is most likely that what is happening here is happening across the board throughout the Bureau of Prisons (BOP), which, along with most other prison systems, is willing to take a gamble on the hope that the coronavirus won’t kill too many inmates, or at least not enough to stir the attention of a largely indifferent media and the public. This is the same sentiment that allowed and abetted the creation of a mass incarceration system; an indifference based on an overwhelming self-centered concern for public safety. Now, focused on the effects, indisputably significant – social and economic – society has bigger concerns than the Constitutional infringement on the rights of prison inmates. These are criminals. Their category supersedes their humanity. What happens to them isn’t of primary interest.
But what happens in the long run, unfortunately, is significant and will have an impact on society as lasting as the effect of the virus. The Eighth Amendment, which addresses cruel and unusual punishment, has been slowly eroded over the past 20-25 years, as people have been sent to prison in droves for decades, for offenses of various levels of criminality, a huge percentage of them non-violent, misdemeanors that have been repackaged as felonies. While American prisons have striven to preserve some sense of ‘humanity’, ‘fairness’ and ‘rehabilitation’, they have largely succumbed to a kind of bureaucratic sadism and/or negligence. One only has to look at the kinds of excesses that have been going on in prisons in the last couple of decades: the medical failures, the cruelty by guards and staff throughout federal and state systems.
By placing thousands of inmates in lockdowns across the country in the hopes of avoiding contagion, the systems have instead created hundreds of potential flashpoints, no different than those cruise ships that made the news at the beginning of the COVID-19 spread. Even as far along in this event as we are, most guards and inmates here still do not wear masks or gloves. There are still ongoing transferences of prisoners from prison to prison and daily movement within the prison itself that seem to bypass the ‘lockdown’. The BOP and many other state systems are hoping that this is the solution, but they don’t know, and can’t know because this is a novel situation; a novel and highly contagious virus, one that is potentially deadly. It is impossible to know who will die and who won’t. Epidemiologists are making educated guesses, but the bottom line is no one really knows what constitutes ‘vulnerability’.
What is clear is that no prison can guarantee the safety and security of every inmate and, as such, the institutions fail in the promise of avoiding cruel and unusual punishment. Being locked down and in fear of an invisible molecular predator is itself a situation provoking anxiety and anticipation of harm. The strategy is further eroding the sense of ‘cruel and unusual’ punishment and what we as a society will tolerate in the future. It is leading us down the same inhumane path that allowed us to take our first steps into mass incarceration, overcrowding and gang violence inside prisons.
It seems that, at least at this institution, the conservative route is the one to which the system is becoming committed. As difficult as it is to accept, we may soon turn ‘cruel and unusual’ into ‘business as usual’, and wash our hands of all accountability when it comes to those who we define as criminals. This trend will take us into unknown territory. Already the prison systems are banking on the fact that some released inmate will commit a criminal act giving them the excuse to stop releasing EVERY inmate, regardless of their history or proclivity for violence. To preserve ‘business as usual’ it is even possible that scheming staffers will release precisely those that are more likely to reoffend while shutting the doors on others. Any violent re-offense by a released felon will push public perception to turn against the idea of releasing ANYONE. Which returns this argument to the central point – in a system willing to define anyone as a violent, predatorily criminal, the boundaries become blurred. Careful judgments fall by the wayside. Expediency and the survival of public-funded institutions win the day. The lobbyists for harsher, more punitive laws and post-incarceration measures will have a field day. A crisis that may have yielded a deeper sense of humanity will yield only more cruelty, ignorance and fear.
Cruel and unusual will morph into business as usual – for all of us.
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