An Unprecedented Time: Decarcerating and other Steps Being Taken in Georgia’s Jails and Prisons as the Result of COVID-19

Written by: Jennifer Dorminey Herzog, Esq.

Because of policies of mass incarceration over the past four decades, the United States has incarcerated more people than any other country on Earth.[1]  Highly transmissible novel respiratory pathogens pose a challenge for incarcerated populations because of the ease with which they spread in congregate settings.[2]  The stage is set.  Enter COVID-19.

I. COVID-19

“Coronavirus disease 2019 (COVID-19) is an infectious disease caused by severe acute respiratory syndrome coronavirus 2 (SARS-CoV-2).  The disease was first identified in December 2019 in Wuhan, the capital of China’s Hubei province, and has since spread globally, resulting in the ongoing 2019-20 coronavirus pandemic.  The virus is primarily spread between people during close contact, often via small droplets produced by coughing, sneezing, or talking.  While these droplets are produced when breathing out, they usually fall to the ground or onto surfaces rather than remain in the air over long distances.  People may also become infected by touching a contaminated surface and then touching their eyes, nose or mouth.  The virus can survive on surfaces for up to 72 hours.  It is most contagious during the first three days after onset of symptoms, although spread may be possible before symptoms appear and in later stages of the disease.” [3]

II. Georgia’s Jails and Prisons

Georgia has 183 jails across 159 counties.  These local jails hold an estimated 39,000 people, according to a 2018 report by the Prison Policy Initiative. [4]  Local jail responses to the coronavirus vary widely, but along with suspension of in-person visitation, conservatively we can estimate that thousands have been released in the past month as a result of Covid 19 concerns.[5]

There are 34 state prisons in Georgia.  Corrections officials suspended visitation of all of them on March 12.  There are four federal correctional facilities in Georgia, two of them privately contracted.[6]  The Georgia Department of Corrections’  approximately 10,500 employees supervise almost 54,000 state prisoners.  The GDC has halted all movement into the prison system, with the exception of medical emergency and disciplinary moves.  The Georgia Parole Board has also reviewed cases to release inmates as a result of COVID 19 concerns.[7]

III. How does One “Social Distance” When Incarcerated? Recommended Steps to Take.

How in fact does one go about “social distancing” in a jail or prison? The short answer is: you don’t.  Jails and prisons are not facilities that lend themselves easily to the kind of social distancing we have been advised to maintain during the coronavirus pandemic.  However, there are steps that our local jails and prisons should be taking to prevent the spread of this disease.  An article in the New England Journal of Medicine recommends the following:

 

• • • “Decarcerating”, or releasing as many people as possible, focusing on those who are least likely to commit additional crimes, but also on the elderly and infirm;
    • Urging police and courts to immediately suspend arresting and sentencing people, as much as possible, for low-level crimes and misdemeanors;
    • Isolating and separating incarcerated persons who are infected and those who are under investigation for possible infection from the general prison population;
    • Hospitalizing those who are seriously ill; and
    • Identifying correctional staff and health care providers who became infected early and have recovered, who can help with custodial and care efforts once they have been cleared, since they may have some degree of immunity and severe staff shortages are likely.[8]

 

The CDC has also issued guidance specific to correctional and detention facilities, which is organized into three sections: Operational Preparedness, Prevention, and Management of COVID-19.  “Correctional and detention facilities can include custody, housing, education, recreation, healthcare, food service, and workplace components in a single physical setting.  The integration of these components presents unique challenges for control of COVID-19 transmission among incarcerated/detained persons, staff and visitors.  Consistent application of specific preparation, prevention and management measures can help reduce the risk of transmission and severe disease from COVID-19.”

 

• • • “Operational Preparedness. This guidance is intended to help facilities prepare for potential COVID-19 transmission in the facility.  Strategies focus on operational and communications planning and personnel practices.
    • Prevention. This guidance is intended to help facilities prevent spread of COVID-19 from outside the facility to inside.  Strategies focus on reinforcing hygiene practices, intensifying cleaning and disinfection of the facility, screening (new intakes, visitors, and staff), continued communication with incarcerated/detained persons and staff and social distancing measures (increasing distance between individuals).
    • Management. This guidance is intended to help facilities clinically manage confirmed and suspected COVID-19 cases inside the facility and prevent further transmission.  Strategies include medical isolation and care of incarcerated/detained persons with symptoms (including consideration for cohorting), quarantine of cases’ close contracts, interacting with cases and quarantines contacts or contaminated items, intensified social distancing, and cleaning and disinfecting areas visited by cases.” [9]

 

The Executive Order to “shelter in place” in Georgia has expired with many resuming business and nonessential activities.  Governor Kemp’s Declaration of Public Health Emergency is set to expire June 12, 2020.[10]  The Governor has also provided operational mandates and recommendations to various categories of businesses, with that Order set to expire June 15, 2020.[11]  Medical professionals concerns and predictions of a surge in cases upon the return to “normal” should have us all cautious to suspend the above protective protocols.  Governor Kemp has also issued an Order granting temporary legal protections for healthcare providers during the pandemic.[12]

Lawsuits are popping up like daisies across the country complaining necessary safety protocols are not in place and/or seeking the release or transfer of elderly and medically vulnerable detainees.[13]  Many of these may be prevented with compliance of the steps outlined as recommended above.

IV. Where We Go From Here

This is certainly an unprecedented time.  Hall Booth Smith, P.C. has put together an educated task force to address COVID-19 issues and litigation.  Please reach out if we can be of service to you.

 

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[1] Matthew J. Akiyama, M.D., Anne C. Spaulding, M.D., and Josiah D. Rich, M.D.; Flattening the Curve for Incarcerated Populations – Covid 19 in Jails and Prisons, available at https://www.americanjail.org/files/Flattening%20the%20Curve%20for%20Incarcerated%20Populations%20NEJM%202020.pdf

[2] Id.

[3] https://en.wikipedia.org/wiki/Coronavirus disease 2019

[4] https://www.wabe.org/which-georgia-jails-and-detention-centers-are-impacted-by-coronavirus/

[5] https://www.wsbtv.com/news/local/cobb-county/hundreds-inmates-released-metro-jails-because-coronavirus-outbreaks/S4SFLXLKVZAVHGC3ZLZIPQEOYY/; https://www.wabe.org/fulton-county-jail-staggering-release-of-300-inmates-as-protestors-raise-alarm/

[6] http://gdc.ga.gov/content/res; https://www.cdc.gov/coronavirus/2019-ncov/community/correction-detention/guidance-correctional-detention.html

[7] http://gdc.ga.gov/content/fag2; https://www.savannahnow.com/nes/20200331/georgia-parole-board-considering-releases-to-address-covid-19-in-georgia-prisons

[8]  Matthew J. Akiyama, M.D., Anne C. Spaulding, M.D., and Josiah D. Rich, M.D.; Flattening the Curve for Incarcerated Populations – Covid 19 in Jails and Prisons, available at https://www.americanjail.org/files/Flattening%20the%20Curve%20for%20Incarcerated%20Populations%20NEJM%202020.pdf

[9]  https://www.dcd.gov/coronavirus/2019-ncov/community/correction-detention/guidance-correctional-detention.html

[10] 5.28.20.01 available at https://gov.georgia.gov/executive-action/executive-orders/2020-executive-orders.

[11] 5.28.20.02 available at https://gov.georgia.gov/executive-action/executive-orders/2020-executive-orders.

[12] https://hallboothsmith.com/governor-kemp-issues-executive-order-granting-temporary-legal-protections-for-healthcare-providers-during-covid-19-pandemic/

[13] https://www.washingtoncitypaper.com/news/article/21125558/dc-jail-inmates-file-class-action-lawsuit-against-doc-leadership-over-response-to-covid19; https://chicago.suntimes.com/coronavirus/2020/4/7/21212550/federal-judge-weighs-lawsuit-cook-cook-county-jail-coronavirus-response-tom-dart; https://www.nbcdfw.com/news/coronavirus/dallas-county-inmates-file-lawsuit-amid-covid-19-outbreak/2349058/.