New York’s Pandemic Rolls On, and Prison Testing is Still an Issue

Once coronavirus cases began to spike in New York back in March, most people encountered barriers to getting tested for the emergent virus, due to the limited lab capacity and availability of test kits. But now that New York as a whole has significantly increased testing and slowed the virus’ spread, it’s still difficult to get an accurate sense of the coronavirus cases in New York’s prison system.

Early on, public health experts made clear the importance of widespread testing: to alert people who were infected so they could  monitor themselves and avoid spreading the virus to others, and to enable government leaders and public health officials to inform the public and make decisions based on better data. 

And since the start of the coronavirus crisis, public health experts, defense lawyers, and elected leaders alike have raised concerns about the virus spreading easily in jail and prison environments. “Jails Are Petri Dishes” read one headline in The New York Times near the end of March, citing a Chicago official who compared the risk in prisons to that in nursing homes and on cruise ships. 

Yet, months after New York first became a hotspot for COVID-19 cases, those in prison are not being tested at rates even close to that of the broader state population. As some states improve prison testing, the scale of the pandemic behind bars is becoming clearer. According to The Marshall Project, at least 48,764 people in prison across the U.S. had tested positive by June 23, which represented a 5 percent jump from the previous week. 

Low rate of testing in NYS prisons

As of Monday, the New York State Department of Health reported that 3,914,938 total people in New York have been tested for the coronavirus. While about 20 percent of New York’s population (about 19.45 million people) have been tested for the coronavirus, just about 3.6 percent of people incarcerated in the state’s prisons have received tests. (As of Monday, the New York State Department of Corrections and Community Supervision reported 1,324 individual total test results for the approximately 39,300 incarcerated individuals in their care, with an additional 97 tests pending.)

Back in May, the Correctional Association of New York published its first report on the impact of COVID-19 for those in prison during the pandemic. The Correctional Association is the only independent organization that has the authority under state law to monitor prisons and report their findings to the public. Jennifer Scaife, who is the Correctional Association’s executive director, raised concerns that the rate of positive COVID-19 tests within the New York State prisons system suggested “many additional cases of the virus that have not been discerned with testing.”

An official at DOCCS disputed the Correctional Association’s report and said in response to a question from City Limits about testing availability, “Yes, the department has sufficient supplies and as needed, additional test kits are ordered from our vendor and they send them.”

In mid-May, DOCCS data revealed that a majority (63.5 percent) of people in the state’s prisons who got tested for the virus were testing positive, reflecting the 465 total positive tests and 267 negative tests recorded as of May 18. 

Now, the most recent data as of Monday shows 39 percent of people incarcerated in New York State prisons who got tested for the coronavirus tested positive (519 positive tests and 805 negative tests). For New York state as a whole, just under 10 percent of people who got tested turned up a positive result over nearly the same timeframe (as of Tuesday).

A unique risk 

Advocates for prisoners’ rights say the coronavirus is particularly concerning in prison environments because the punitive culture and lack of freedom prevents people in prison from making choices to decrease their risks . Sophie Gebreselassie, a staff attorney with the Prisoners’ Rights Project at the Legal Aid Society says that the “realities of the prison environment make it impossible for people in prison to implement the hygiene, cleaning and social distancing protocols recommended by public health agencies.”

“Incarcerated people lack the ability to socially distance from each other or facility staff, often lack the freedom or means to clean their cells or maintain their hygiene, and access to and permission to wear face masks in DOCCS facilities has been inconsistent,” says Gebreselassie. “People in prison cannot engage in the risk mitigation necessary to protect themselves and each other and prevent the spread of COVID-19 in what is effectively their home.”

The DOCCS official told City Limits on June 5 in a statement that the department “has initiated a number of measures that will be maintained, and will layer in new ones” such as mandating all staff to wear a face mask while on duty, procedures to increase access to masks among those in custody, continuing enhanced cleaning and sanitizing measures, etc. 

The statement also said, “Our focus is ensuring that the hardworking men and women of this department, as well as our incarcerated and parolee populations, are healthy and safe. Just as we have successfully managed infectious outbreaks in the past, we have emergency protocols in place and have proactively made adjustments in our facilities and Community Supervision offices in an attempt to limit any outbreaks.”

Despite DOCCS’ assurances about availability of testing, Gebreselassie says that Legal Aid had heard from people in custody who say “they have not been provided COVID-19 tests when they’ve feared they were infected and even when they’ve shown symptoms.”

A problem of unknown size

Less testing alone does not automatically mean there are numerous undetected cases, but it certainly means less clarity about the overall picture of the disease, the change in cases over time. After all, data is what allows public health professions to “monitor and track the disease in a meaningful way,” says Melody Goodman, a professor of Biostatistics at NYU School of Global Public Health. 

She adds that given the prevalence of underlying conditions  and older people within prison populations, it’s all the more important to have widespread testing. Especially without a cure, consistent monitoring and providing information are the best things the field of public health can do to prevent the virus as much as possible from spreading further. 

“We need more data. But for vulnerable populations, we want even more data,” Goodman says. “If you don’t have a full snapshot of something that can move so quickly, you’re not able to contain it.”

DOCCS has reported five confirmed deaths due to COVID-19 among staff, 16 deaths among those incarcerated, and four among parolees. Goodman explains that mortality is the “most reliable statistic we have” because “it’s hard to not report a death.” An extremely high percentage of people dying after testing positive for the virus might have raised more red flags about the reliability of DOCCS’ data on COVID-19 in prisons. Yet, 6 percent of people throughout the state with confirmed cases of the virus have died, while about 3 percent of those incarcerated in DOCCS facilities died after testing positive.

Of course, the fight against the virus is not over and the prison environment poses specific challenges for reigning in the virus’ spread that the rest of New York’s population doesn’t have. For example, one of the major tools to contain the virus has been encouraging people who test positive or who have symptoms to isolate at home, but isolation takes on a different weight in prisons. Gebreselassie says that “folks in custody have shared that they fear reporting symptoms or possible exposure to COVID-19 as quarantine can often mean being moved to a form of restrictive housing that results in not having access to personal property, solitary confinement or worse.”

Goodman identified similar challenges for confirming cases and being able to monitor the virus within the punitive environment of the prison system. “It’s one thing to quarantine in your own home where you have Netflix, and you have UberEats, right? It’s another thing to have to quarantine, where being quarantined is a more severe form of punishment,” she says.

The basic conundrum, as she puts it, is: “Am I willing to even identify that I have symptoms if I’m basically going to be punished?”

In describing its protocol for dealing with suspected cases, DOCCS says people in prison with COVID-19 symptoms are “isolated” for at least 14 days and until they’ve gone three days without fever or fever-reducing medicine. While the agency doesn’t specify that “isolation” means solitary confinement, in some prisons that might be the only way to achieve isolation.

Transparency concerns

The pandemic has also highlighted the dangers of not having built-in mechanisms to ensure transparency, says Jeffrey Coots, director of the From Punishment to Public Health initiative at John Jay College of Criminal Justice.

Before today’s criminal justice system, Coots explains that punishment used to occur in the public square where people would be publicly humiliated. He says that the methods of a few centuries ago (such as punishing people by putting them in the stocks while people threw vegetables at them) fell out of use as people started to see these public-shaming punishments as cruel.

“Because the way we mete out punishment is that we remove people from the community, one of the byproducts of that [removal process] is that we remove them from our civic consciousness as well,” he says.

That removal has helped to obscure problematic conditions in prisons.

“What we’ve seen is that COVID-19 has really put a magnifying glass on the way our society is structured. Our prisons have been overcrowded long before COVID happened, and people were complaining about it long before COVID happened and that it was an inhumane situation,” Goodman  says. “Now that overcrowding could potentially be a death sentence.”

The opacity that goes with prisons’ remote location and punitive culture exacerbates the concerns that arise during a public-health emergency. Coots says that in their operations and procedures, DOCCS is not set up or resourced accordingly to consistently share information about the health of people in their care. For example, worried family and friends can lead to higher call volume and if there’s not enough staffing or a procedure in place for sharing information about the individuals in state prisons, they’re less likely to deliver on providing this information and developing trust.

“If New Yorkers perceive that the state cannot be trusted to care for their loved ones in state facilities, then we have a real problem in our criminal justice system,” Scaife says. “They do not feel DOCCS is equipped to handle a pandemic. Whether it’s true or not, you have a real erosion of civic life.”

The Correctional Association, a private entity, has less power to ensure accountability in state prisons than the public New York City Board of Correction has for the city’s correctional facilities. There was a major COVID-19 outbreak at Rikers, but having a robust mechanism for transparency in place allowed for the general public and advocates to access daily updates, to follow the situation and press for more information when necessary. 

“That’s a prime example of even when something goes terribly wrong,” says Coots, “transparency can be a net good, even though it makes the agency who is not performing as well as we would want them to look really bad.”

Boosting calls for reform

The pandemic experience has added a sense of urgency to efforts to increase oversight of state prisons, which are currently overseen by the New York State Commission of Correction, which has less power than the city’s Board of Correction. In fact, the NYC Board of Correction even has subpoena power and the authority to enforce it in a court of law.

The New York State legislature introduced a bill in March that would strengthen the Correctional Association’s power under the law to increase transparency and promote accountability in New York’s prison system. If enacted, the bill would grant the Correctional Association the ability “to access, visit, inspect, and examine all state correctional facilities without advance notice to the department” and unrestrained access to records and information, without filing freedom of information law requests.

Coots asks, “How do we learn lessons from COVID to improve the whole system?”

“There wasn’t a mechanism for regular communication about people’s health to loved ones, and communication about overall health in prisons,” he says.“If we were regularly posting data about health problems, I guarantee you we would have better healthcare inside, because we could draw attention to issues and organize around it.”

Eileen Maher, an organizer with VOCAL-NY, was formerly incarcerated herself, at state prisons Albion and Bedford Hills, and has stayed in touch with people who haven’t been released yet. As an organizer, she has been advocating for increased testing, social distancing, and access to masks and cleaning materials in prisons. 

Maher hopes that the coronavirus crisis will serve as a wake-up call and set a precedent to show the need for improving care for those in prison. “So we don’t have to keep having these same conversations over and over,” she says.

Nicole Javorsky is a Report for America corps member.