Viewpoint- Managing Covid-19 in Prisons: Why Meaningful Decarceration cannot be achieved without considering Pre-Existing Medical Conditions

Amidst the growing Covid-19 pandemic, a group considered amongst the most vulnerable are prisoners. Experts, at both a national and international level, have warned that, should the virus proliferate into the world’s prisons, mortality rates are expected to surge.

Dr. Hans Kluge, European Regional Director for the WHO, himself having practiced as a tuberculosis physician in prison systems, warned of the extreme vulnerability of prisoners to infectious disease, stating, “Covid-19 knows no boundaries; this includes transmission between detainees, facility staff, visitors and, undoubtedly extending outward to (re)infect the general public. Only the boldest of actions will slow and stop the spread of disease. We must not leave anyone behind in this fight”.

In response, many countries have adopted methods, ranging from increased testing and immediate isolation of prisoners showing symptoms, to granting prisoners conditional release in order to reduce the burdens on their prison systems and facilitate a measure of distancing. Simultaneously, panic over the pandemic has led to instances of prisoners escaping and fleeing, such as in Brazil, where approximately 1500 prisoners broke free from 4 semi-open prisons, as well as panicked prisoners rioting, which has been seen in Brazil, Italy, Columbia and India in Kolkata’s Dum Dum Central Correctional Home, a riot which injured 8 and resulted in the death of 1 individual.

Indian prisons are, at the best of times, and despite the best efforts of jail authorities, besieged by a number of problems, the most significant of which is overcrowding. Data obtained from the Prison Statistics maintained by the National Crime Records Bureau reveals that the 1339 prisons functioning in India posses an average occupancy rate of 117%. While some States have lower occupancy rates some, such as Uttar Pradesh, run as high as 176.5% occupancy. Conditions such as these lead in turn to heightened proximity between inmates, poor hygiene and higher rates of communicable diseases.

As the inmates of most Indian prisons live and sleep in wards, with several inmates assigned to a ward, as opposed to individual cells, maintaining any measure of social distance between inmates is not an easy prospect. Combining these circumstances with the realities of an extremely contagious virus like Covid-19 turns Indian prisons into a ticking time bomb; Not only are prisoners, both convicted and under trial, at risk, so are the thousands of other individuals moving in and out of prisons – prison officials, doctors, social workers, visitors and lawyers through which, should the disease take hold in our prisons, it could potentially be carried back to re-infect the public, as Dr. Kluge has warned.

The Supreme Court of India, taking suo moto cognizance of the matter and recognizing the extreme vulnerability of prisoners to contagious disease, in an order dated March 23^rd, 2020, directed the constitution of High Powered Committees in each State and Union Territory to determine a class of prisoners that could be granted parole or interim bail to reduce occupancy rates. The High Powered Committee formed by the Delhi High Court, under the guidance of Justice Hima Kohli and in conjunction with the advice of the Director General of Prisons has proposed that the following classes of prisoners be considered for grant of emergency interim bail / parole:

1. Under trial prisoners (UTPs), who are senior citizens more than 60 years of age and are in custody for six months or more, facing trial in a case which prescribes a maximum sentence of 10 years or less;

2. Under trial prisoners (UTPs) who are less than 60 years of age and are in custody for one year or more, facing trial in a case which prescribes a maximum sentence of 10 years or less;

3. Under trial prisoners (UTPs) / Remand prisoners, who are in custody for 15 days or more, facing trial in a case which prescribes a maximum sentence of 7 years or less

A class of prisoners notably neglected in the recommended categories, however, are prisoners with pre-existing medical conditions. From the emergence of the outbreak, persons considered most vulnerable to Covid-19 are senior citizens and those (of any age) suffering from pre-existing medical conditions that contribute to immunodeficiency. While being at a greater risk of contracting Covid-19, prisoners suffering immune deficiency are also at a greater risk of not being able to fight the virus off, making it a literal death sentence for them if infected.

The pre-existing medical conditions that place individuals at greatest risk are reported to be cardiac conditions, auto-immune diseases, respiratory diseases and diabetes. According to Johns Hopkins University, with Covid-19 being pulmonary in nature, people suffering from lung and airway diseases like chronic obstructive pulmonary disease, emphysema, pulmonary fibrosis, asthma and interstitial lung disease are at risk for more severe infections, due to the presence of scarring, fibrosis, inflammation or lung damage.

A probable reason for why the consideration of medical conditions has been left out of the criteria determining which classes of prisoners may qualify for emergency interim release is that assessing this qualification would be slightly more complicated and subjective than the other criteria. While the questions of an inmates age, the charges they are facing and how long they have been incarcerated are straightforward, determining whether their medical condition places them at higher risk and thereby qualifies them for interim release is one that involves consideration of their medical background and is a more nuanced decision.

On balance, however, taking into account the benefit that such release would pose, not only to the high risk individuals themselves, but to society at large, if releasing the most vulnerable of these prisoners would serve to protect our prison systems from an outbreak, it is a measure that we should not disregard. The composition of a board for each prison, comprised of the prison doctors as well as other prison authorities, could be authorised who, while adhering to certain guidelines, could assess the medical files of each inmate to determine who should qualify for interim release. Even if the board determines that inmates who are potentially violent or have a high likelihood to reoffend should not be granted such release, should they be high risk, measures within the prison itself should be undertaken to ensure their health and limit potential exposure to infection.

Lastly, grant of bail on medical grounds has always been a compassionate and humanitarian measure, signifying the intent of the Court that everything, including punishment, must be meted out with humanity. A prisoner is essentially a ward of the State and the State must uphold the responsibility to protect them from harm while they are in its care. To abandon the most vulnerable of them now, when their very lives could be at stake, would be akin to the abandonment of the inmates of Orleans Parish Prison during Hurricane Katrina, left to die in neck high floods and still unacknowledged. As the proverbial waters rise around them, the State must remember its oath of humanity.

Authored By: Karanjawala & Co. Senior Partners Sandeep Kapur and Senior Associate Niharika Karanjawala