COVID-19 in crowded Mississippi prisons ‘a disaster waiting to happen’

By Shirley L. Smith

Mississippi corrections officials are putting the lives of approximately 6,000 inmates housed at the state’s two largest prisons at risk by failing to implement adequate safety precautions to protect them from the deadly COVID-19 virus, a federal lawsuit alleges.

In overcrowded conditions where social distancing is virtually impossible, “It’s a disaster waiting to happen,” Paloma Wu, deputy director of Impact Litigation for the Mississippi Center for Justice, said in a press conference on Friday.

MCJ filed a class-action lawsuit Thursday in U.S. District Court against the Mississippi Department of Corrections, the Central Mississippi Correctional Facility in Rankin County and the South Mississippi Correctional Institution in Leakesville. Joining the suit are the Hogan Lovells law firm, attorney Mark Whitburn of Austin, Texas, the ACLU of Mississippi and the MacArthur Justice Center.

Wu said the nine inmates named in the lawsuit are just a few of the many vulnerable people at the prisons who are disabled and/or have “extremely profound medical issues that the CDC has identified as risk factors for serious illness and death.” Yet, they are living in “functionally overcrowded” units.

“Prior to the COVID-19 pandemic, Mississippi’s prisons were already in a state of crisis; men and women die in Mississippi prisons at a rate that far exceeds the national average,” MCJ’s President and CEO Vangela Wade said in a news release.

As of May 15, data from the state Department of Health show 11,123 people in Mississippi have been infected with the coronavirus and there are 510 confirmed deaths. Although the number of people infected with the virus continues to increase, testing in the prison system, in particular, has been low.

Mississippi has the second-highest rate of incarceration in the nation, with 18,069 prisoners in custody. However, “systemwide, MDOC has tested less than one half of one percent of its population for COVID-19 –  only a few dozen of the over 18,000 individuals it holds in custody,” according to the lawsuit.

To date, MDOC records show that 12 inmates have been confirmed to have COVID-19 and 39 other inmates have been tested. Of those, 35 have tested negative and five results are pending.

“That would be a statistical miracle if we had prisons that were that much safer than everywhere else in the community and the country,” Wu said.

MDOC’s Communications Director Grace Fisher said, “the MDOC practice is to not comment on pending litigation.” But, she said. “the Mississippi Department of Corrections will continue to take action to protect staff, inmates, and the public in response to developments with COVID-19. The MDOC is committed to ensuring inmates' rights, safety and health are safeguarded through this process”.

This litigation was necessary, Wu said, because their investigation revealed that if there were a large outbreak in the prisons, there are “no mechanisms in place right now to prevent unnecessary illness and death.”

“The experience of other states shows that once COVID-19 begins spreading within a prison, it is only a matter of time until the outbreak spreads rapidly and hundreds are infected,” the lawsuit said. “The jail on Rikers Island in New York City went from a single confirmed case to 287 cases in just over two weeks.”

The lawsuit alleges that MDOC has not implemented basic pandemic response protocols recommended by the Centers for Disease Control and Prevention such as frequent cleaning and disinfection of living units, and providing sufficient hand soap and cleaning supplies to inmates.

Despite these clear guidelines, the plaintiffs say prison officials have failed to properly clean and disinfect the overcrowded living units in the two prisons and provide sufficient cleaning supplies to inmates.

“Residents regularly run out of soap and cannot wash their hands. Some use unlaundered personal towels to try and clean common areas,” the lawsuit said. “Residents spend most of their time in and between cramped rows of bunk beds placed about four feet apart.”

The plaintiffs contend that the state is violating the Americans with Disabilities Act, the Rehabilitation Act and the Eighth Amendment of the U.S. Constitution by failing to implement the necessary precautionary measures to protect inmates and “to reasonably modify its programs and services to address the substantial and increased risk” that inmates with disabilities have of contracting the virus, and becoming severely ill or dying from COVID-19.

The plaintiffs claim the state has also failed to promptly isolate and test all prisoners who reported having coronavirus symptoms and to communicate key infection prevention information.

For example, the lawsuit states an inmate at SMCI, who is a named plaintiff, reported symptoms consistent with COVID-19 to staff and submitted the required “sick call slip to be seen.” However, it took days for this inmate’s sick call slip to be answered, “during which time he stayed (in) his unit of 100 men living in rows of bunk beds approximately four feet apart. He was never tested for the flu or for coronavirus. Reportedly, the illness he had quickly spread to others in his unit.”

This lawsuit is one of several that have been filed against the state prior to the COVID-19 crisis for violating the civil rights of inmates.

READ: Parchman inmate’s death tied to COVID-9

“On January 7, 2020, following outbreaks of violence within the prison system and five reported deaths, leaders within the state called upon the Department of Justice Civil Rights Division to investigate conditions of confinement within MDOC. The letter identified ‘severe understaffing and horrific conditions’ as the basis for the investigation,” the lawsuit said.

The dire situation at these prisons is made worse by longstanding severe staff shortages.

“We don’t really call it understaffing anymore. We call it the problem of operating capacity,” Wu said. She explained that some prisons are 50 percent or more understaffed, which affects the basic operations of the prison such as living conditions, the ability to properly supervise prisoners and keep everyone safe and to get inmates the medical care they need because prisoners are required to have escorts to go to and from services.

“At both CMCF and SMCI, people have been in need of medical attention and unable to obtain it because staff was unavailable or unresponsive,” the lawsuit said. “At both CMCF and SMCI, the sick call process usually takes multiple days and many residents have not been informed of any expedited procedure for COVID-19 symptoms. A shortage of staff makes it difficult to obtain quick action if symptoms do arise.”

Wu added: “When you talk about operating at double your capacity, this means that there is one guard, very often, (who is) over 200 to 400 people, sometimes spread between two buildings.”

Audits at multiple facilities revealed that staff shortages have also opened the door for gang control, which plaintiffs’ say is “prevalent across facilities."

Mississippi prisons are also notorious for gang violence, dismal sanitary and structural conditions, and inadequate mental and physical health care.

But despite these conditions and staff shortages, the lawsuit states that, “MDOC pays the lowest salaries for correctional staff of any state in the country” and “from 2014 to 2019, state spending on Mississippi’s correctional facilities has declined by over $180 million.”

The plaintiffs also pointed out that, “the number of deaths in the Mississippi prison system has steadily increased from the mid-2010s, with 85 deaths in FY 2018 and 80 deaths in FY 2019.  As of April 18, 2020, at least 30 incarcerated persons in the state prison system have died this year.”

All of this has elicited cries from local and national advocates to increase the salaries of the state’s correctional officers, reduce life sentences and harsh penalties for nonviolent crimes, and release elderly prisoners with serious, disabling medical conditions.

“Safely reducing the number of incarcerated people is the best way to prevent an unnecessary deadly outbreak, but in the meantime, minimal protective practices must be immediately implemented,” Wade said.

According to the CDC, the coronavirus can spread easily between people within six feet of one another through respiratory droplets produced when an infected person coughs, sneezes or talks.

Recent studies show the virus may also be spread by people who are not showing symptoms and by touching a surface or object that has the virus on it and then touching your mouth, nose or eyes.

While Mississippians may think they are immune to what happens behind the walls of a prison, Wu offered a cautionary tale to the community especially those living close to prisons.

“Everywhere across the country where there have been these extreme hotspots, there is rising infection rates in the surrounding communities,” she said. “There are a large number of people who are coming in and out of these hotspots when they are in prisons and they are going back to their communities. So, it’s not just guards. It’s administrative staff, legal staff, and people who provide food and people who help with maintenance.

“Their chance of exposure to the virus is much higher and then they are going back to their homes where their families are.” MDOC also reported that eight employees tested positive for COVID-19.

ALSO READ: Fear of coronavirus keeping some employees away from already understaffed Parchman prison

Given the staff shortages, Wu recognizes it would be challenging for the state to properly adhere to all of the necessary precautions recommended by the CDC, but she said there are other “safe, effective, extremely conservative ways to deal with this issue of operating capacity that we believe has been a bar to effective implementation of coronavirus precautions.”

Wu said, “the MDOC Commissioner has the sole discretion to release people under our compassionate release law in Mississippi.”  It’s a “very underused” law, she said, but one that applies to this situation. “Many of the people who are most at risk for serious illness and death from the coronavirus in these institutions and others should be eligible for compassionate release under the state statute,” she said. “The commissioner, who is a defendant in the suit, could use that now to solve the problem.”

The governor could also use the powers conferred to him in the Emergency Overcrowding Act, which gives him the discretion to release inmates if the prison is overcrowded, Wu said, adding that, “the prison system is well beyond its operating capacity.”

“The governor has the power right now to say, everyone who has a parole date within 30 to 90 days can actually become parole eligible now, so it’s not opening up the gates to let everybody out,” Wu said. She stressed that, “these are people who are already about to be eligible for parole. They still need to go before the Parole Board to determine whether they are good candidates, whether they are ready, whether they have done what they need to do, whether they are safe to release.”

The plaintiffs are asking the court to issue “a temporary restraining order, preliminary injunction, and permanent injunction requiring that defendants take all reasonable and necessary steps to comply with the Eighth Amendment, the ADA, and the Rehabilitation Act and to prevent the transmission of COVID-19 and to properly treat those who contract it.”

This was originally published by the Mississippi Center for Investigative Reporting.