By Cheryl Alethia Phelps

On March 6, five days before the World Health Organization declared the novel coronavirus outbreak a global pandemic, a senior staff attorney with the ACLU National Prison Project posed a series of challenging questions, beginning with “Are Our Prisons and Jails Ready for COVID-19?”

We know, of course, that they are not.

In fact, confined people are at significantly higher risk of COVID-19 exposure, serious illness and death. This is critically important in our region where the Otay Mesa Detention Center has the unfortunate distinction of being the site of the largest outbreak of COVID-19 of any U.S. Immigration and Customs Enforcement (ICE) detention center nationwide. Said ACLU Foundation of San Diego & Imperial Counties (ACLUF-SDIC) Immigrants’ Rights Staff Attorney Monika Langarica: “On any given day, hundreds of people are held inside the Otay Mesa facility, where as of May 4, 189 detained people have tested positive for COVID-19.”

Mass incarceration was a national crisis and international disgrace before the onset of COVID-19. But in the battle to control the spread of the virus, mass incarceration is our nation’s Achilles’ heel.

To assess the impact of not including decarceration (the opposite of incarceration) in our governments’ response to COVID-19, the ACLU partnered with researchers from Washington State University, the University of Pennsylvania and the University of Tennessee to incorporate the dynamics of a jail system into the standard epidemiological model of COVID-19.

The resulting model predicts that even if communities across the United States practice social distancing and follow personal hygiene and public health guidance, we will experience as many as 100,000 more deaths than projected if no significant action is taken to reduce jail populations.

Released on April 22, the ACLU model and white paper, “Flattening the Curve: Why Reducing Jail Populations is Key to Beating COVID-19,” were reported on by HuffPost, The Guardian and ABC News. ACLU National Executive Director Anthony Romero spoke about the findings and need for urgent action with Rachel Maddow on MSNBC.

Overcrowded, unsanitary conditions in our prisons, jails, youth facilities and immigrant detention centers make it impossible to maintain the social distancing and hygiene practices that are the only defenses against the spread of COVID-19. Such conditions violate constitutional rights against punishing persons not convicted of any crime or subjecting persons serving criminal sentences to cruel and unusual punishment, as well as rights guaranteed by other federal or state laws.

When the World Health Organization declared COVID-19 a pandemic on March 11, the ACLU national office and affiliates launched an intensive campaign to protect the lives of people in federal, state and local government custody; and lives of countless people who work in our nation’s prisons, jails, juvenile facilities and immigrant detention centers, their families and the communities in which they live.

“Detention should not be a death sentence,” said David Cole, legal director for ACLU national, “and most prisons, jails and detention centers cannot ensure that those in their charge are held under the social distancing guidelines the CDC urges all of us to follow. Many are held without posing any danger to the community and should be released if they cannot be held safely.”

As reported by the San Diego Union-Tribune last Monday, the ACLU Foundation of San Diego & Imperial Counties is either lead counsel or co-counsel in three lawsuits to save lives and slow the spread of COVID-19 in our region’s prisons, jails and detention centers. What’s more, we sent letters to the officials who oversee the jails, prisons and juvenile halls in the two counties, providing them with specific recommendations to prevent deadly outbreaks in their facilities.

Below is a timeline for ACLUF-SDIC’s legal advocacy and litigation efforts since the pandemic was declared:

On March 11, ACLUF-SDIC sent letters to Calipatria State Prison; Centinela State Prison; the Imperial County Probation Department; the Imperial County Sheriff’s Office, which oversees jails in Imperial County; the Richard J. Donovan Correctional Facility; the U.S. Marshals Service; the Probation Administration Center in San Diego County; and the San Diego County Sheriff’s Department, which oversees jails in San Diego County.

• In these letters, we urged officials to develop comprehensive, evidence-based emergency plans to address potential spread of COVID-19 in their facilities. “This is an urgent matter,” wrote ACLUF-SDIC Staff Attorney Jonathan Markovitz. “Having an appropriate, evidence-based plan in place can help prevent an outbreak and minimize its impact if one does occur. Not having one may cost lives.”

Also on March 11, we joined with the Southern California and Northern California ACLU affiliates to send similar letters to U.S. Immigration and Customs Enforcement (ICE) regarding immigration detention centers across the state.

On March 19, we joined with Pillars of the Community, the Earl B. Gilliam Bar Association and other community partners, to send a letter to San Diego County officials calling for a reduction in our local jail population to reduce the potential spread of COVID-19 among confined people, their families and communities.

On April 3, ACLUF-SDIC attorneys filed a lawsuit in U.S. District Court on behalf of four medically vulnerable people held at Otay Mesa Detention Center and Imperial Regional Detention Facility. This case was resolved when our clients were released.

On April 21, attorneys with the ACLU Foundation of San Diego & Imperial Counties filed a class-action lawsuit in U.S. District Court to demand an immediate and significant reduction in the number of people held at the Otay Mesa Detention Center and the Imperial Regional Detention Facility.

• “The Otay Mesa Detention Center is being ravaged by the largest confirmed outbreak of the Coronavirus Disease 2019 (“COVID-19”) of any immigration detention center in the United States. Dozens have been infected and hundreds have been potentially exposed. Without this court’s timely intervention, many more people will get sick, many will suffer severe symptoms, and some will die,” our lawsuit says.
• Our lawsuit also sought an emergency temporary restraining order calling for the immediate release from Otay Mesa of people whose age and/or underlying medical conditions place them at heightened risk of COVID-19 related illness or death.
• Our lawsuit proposes a system for reducing Otay Mesa’s overall population through the safe and orderly release of people to their networks of care, where they can self-quarantine and practice social distancing.
• On April 28, ACLUF-SDIC attorneys argued for emergency release of medically vulnerable people from ICE detention at Otay Mesa. Attorneys for CoreCivic, the private company that operates the Otay Mesa facility, told the court there were only eight individuals in detention at higher risk for severe illness.
• On April 29, CoreCivic attorneys filed a supplemental briefing with the court saying they “acquired new information” from ICE that “51–69 ICE detainees” are at “higher risk for severe illness due to COVID-19.”
  

  Breaking: today @CoreCivic admitted it is imprisoning “51-69 ICE detainees” who may be at “higher risk for severe illness due to COVID-19,” not the 8 it claimed in yesterday’s hearing. Judge Sabraw is holding a telephonic hearing at 10 am tomorrow.— David Loy (@DavidLoySD) April 30, 2020

• On April 30, after further argument, U.S. District Judge Dana Sabraw issued an order directing the federal government to release more than 50 medically vulnerable people in ICE custody at the Otay Mesa Detention Center or explain why they should not be released.

In his ruling, Judge Sabraw wrote that conditions at Otay Mesa “are unconstitutional under the Fifth Amendment because the conditions of their confinement place subclass members at substantial risk of serious illness or death.”

• On May 4, ICE confirmed in a hearing that there are more than 100 individuals in immigration custody at Otay Mesa Detention Center that the agency has determined to be medically vulnerable. Judge Sabraw ordered ICE and CoreCivic to report by May 8 on progress in releasing medically vulnerable people from the facility.

On April 25, we joined with the Southern California and Northern California ACLU affiliates to sue the state of California, calling on Governor Newsom to stop transferring people from state prisons and jails to ICE custody during the pandemic. “ICE’s abject failure to protect the lives of people in its custody from the deadly COVID-19 is inviting a calamity — a public health crisis that will affect not just the detainees, but the surrounding communities and California as a whole,” the lawsuit says.

• The story was covered by the San Diego Union Tribune and media outlets across the state and nationwide.

Also on April 25, we joined with ACLU national, Southern California and Northern California ACLU affiliates, and Munger, Tolles & Oleson LLP to file suit calling on the governor and attorney general to drastically reduce the populations of county jails and juvenile facilities statewide during this public health emergency.

Also on April 25, we joined with the National Immigration Project of the National Lawyers Guild, ACLU national and Ropes & Gray LLC to file a class-action lawsuit in U.S. District Court demanding a drastic reduction in the number of people in U.S. Marshals Service’s custody at the Otay Mesa Detention Center during the COVID-19 pandemic. Otay Mesa holds hundreds of federal defendants for the U.S. Marshals Service, including people in pre-trial custody, who are at risk of exposure to the virus.

• On May 5, ACLUF-SDIC and National Lawyers Guild attorneys argued for emergency release of medically vulnerable people from U.S. Marshals Service detention at Otay Mesa.

What’s next? What can We the People do to end mass incarceration, stop the spread of COVID-19 in our prisons, jails, youth facilities and immigration detention centers, and save lives?

• In yesterday’s testimony before the San Diego County Board of Supervisors, our Immigrant Rights and Binational Affairs Advocate Esmeralda Flores said, “San Diego County’s response to the COVID-19 pandemic must be grounded in science, data-driven and aligned with our region’s shared values of fairness, compassion and public safety.”
• If you agree, join us in calling on the Board of Supervisors to establish a process that ensures people who are released from jails and immigration facilities are safely reunited with family or, if necessary, housed in the hotel and motel rooms the county government has already secured.
• To learn more about the ACLU’s recommendations to achieve a 50 percent reduction in U.S. incarceration rates, check out our 2019 publication, A 50 State Blueprint for Smart Justice, which includes the Smart Justice Blueprint for California.

The ACLU Foundation of San Diego & Imperial Counties works to protect people’s fundamental rights and freedoms. We fight for justice on multiple fronts, to expand the circle of human concern to include everyone.

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Cheryl Alethia Phelps is communications director for the ACLU Foundation of San Diego & Imperial Counties.