On March 23, 2020, Maryland Governor Larry Hogan issued Executive Order 20-03-23-01, which prohibits gatherings of more than 10 people and closes “non-essential” businesses to the public. In a grave oversight, the order makes no mention of prisoners who are at high risk of becoming infected by the novel coronavirus and suffering from COVID-19. This letter addresses measures that must be implemented to ensure the safety and well-being of Marylanders in “total institutions.”
March 24, 2020
To the Honorable Larry Hogan, Governor of the State of Maryland:
We are writing to you in this emergency period with a request that your administration build upon the actions you have already taken, by immediately giving priority to the difficult task of preventing the spread and limiting the impact of the COVID-19 virus in the total institutions within your jurisdiction, and advocating for comparable actions by federal authorities in ALL detention facilities in Maryland.
At the state level, we are referring specifically, to the state, and local (county and municipal) “correctional” facilities, and the psychiatric units and hospitals of Maryland – all of which are within state regulatory control. Our insistence on prompt action is based on the general consensus that these total institutions are known to be incubators, aggravators and transmitters of infectious diseases, not only within facilities, but to the wider community.
We also know that people confined in such institutions are more likely than the general public to be vulnerable to severe illness and death from the virus, and the spread of the virus to total institutions is inevitable. Therefore, confinement of vulnerable persons in these institutions, unless absolutely necessary for public safety, must not be allowed to become a death sentence. And since total institutions confine people who are stigmatized, and whose staff members are often devalued, priority attention, at the highest level of government, is essential. Following the lead of other states, elderly prisoners and those at high-risk of dying from COVID-19 due to chronic conditions should be released to safe situations in the community.
On March 5, 2020, you declared the COVID-19 pandemic a catastrophic health emergency in Maryland. On March 23, 2020, you issued Executive Order 20-03-23-01, which prohibits gatherings of more than 10 people and closes “non-essential” businesses to the public. This order states,
To reduce the spread of COVID-19, the U.S. Centers for Disease Control and Prevention [CDC] and the Maryland Department of Health recommend canceling large gatherings and social distancing in smaller gatherings;…
The currently known and available scientific evidence and best practices support limitations on large gatherings and social distancing to prevent exposures and transmissions, and reduce the threat to especially vulnerable populations, including older individuals and those with chronic health conditions;…
To reduce the threat to human health caused by transmission of the novel coronavirus in Maryland, and to protect and save lives, it is necessary and reasonable that individuals in the state refrain from congregating[.]
In a serious oversight, your order makes no mention of prisoners who are at grave risk of becoming infected by the novel coronavirus and suffering from COVID-19. Prison authorities must commit to follow CDC guidelines for risk assessment and public health management of persons with potential COVID-19 exposures.
Therefore, using the authority, resources and guidelines available to you, we call on our state government to take the following actions to prevent and contain the spread of COVID-19, within total institutions and to the community:
- Release all elderly incarcerated people (over the age of 55) from the correctional facilities, unless there is clear evidence that release would present an unreasonable risk to the physical safety of the community,through clemency, expedited commutation and parole practices, and preparing prisoners for safe release;
- Similarly, release all incarcerated populations that the Center for Disease Control has classified as vulnerable (those with asthma, cancer, heart disease, lung disease, and diabetes), unless there is clear evidence that release would present an unreasonable risk to the physical safety of the community;
- Release all such prisoners, and all other prisoners who have anticipated release dates in 2020 and 2021, to appropriate parole supervision;
- Advocate for the release of people in federal detention within Maryland;
- Reduce the local and state prison population, by all other available extraordinary means, consistent with public safety, to ensure that capacity is such that cells are not shared, that there are sufficient medical beds, and there are enough prison staff to ensure safety for staff, those incarcerated, and visitors: (a) by reducing admission, through changes in police, prosecutorial, immigration and judicial practices; (b) by releasing people detained pretrial, without the use of bail bonds, and without charges for electronic monitoring; (c) by immediately suspending all unnecessary parole meetings and eliminating parole revocations for technical violations; and (d) by screening prisoners on admission and diverting ill people from correctional and immigration detention facilities to appropriate medical settings.
- Mandate screening of all persons entering correctional facilities, provide soap, CDC-recommended hand sanitizer, medical care, comprehensive sanitation and cleaning of facilities and other safety measures free of charge as recommended by the CDC, for those who remain incarcerated; including preparing for indicated quarantine and hospitalization of ill prisoners;
- Circulate educational materials that clearly state the measures they can take to minimize their risk of contracting or spreading the virus (i.e. importance of proper hand washing, coughing into their elbows, and social distancing); to all individuals in the total institutions. Educational materials should be distributed in multiple formats including (a) written materials in English and Spanish as well as any other necessary languages; and (b) audio materials in English and Spanish, as well as any other necessary languages.
- Eliminate barriers to communications with families and loved ones not required by safety considerations, such as phone call, video call, and email costs, and unreasonable time limits on all forms of communication;
- Suspend all operations under Maryland Correctional Enterprises, and guarantee income to those prisoners employed with MCE;
- Mandate and effect comparable interventions within psychiatric units and hospitals, and drug treatment programs including but not limited to accelerating the release of hospital patients who no longer meet the standard for involuntary civil commitment;
- Mandate and effect comparable interventions for Juvenile Justice Commission Secure Care Facilities;
- Distribute testing kits and other necessary resources. Although COVID-19 emerged as a pandemic in January, a lack of adequate testing has rendered the United States ill equipped to adequately address the crisis. This includes Maryland, a state which prides itself on its medical expertise. More tests must come on line for all Marylanders, including prisoners, who are at special risk of developing COVID-19;
- Implement the collection of data regarding COVID-19 in the state’s total institutions that include the same information tracked in the community; and
- Release to the public the existing plan and procedures in place to address COVID-19 in the state’s total institutions.
We can, of course, encourage and assist individuals to take the precautions now widely advised. However, for the people who live and work in total institutions, we must rely on our government to take the actions listed above. We would be happy to meet with you to discuss further details about our recommendations.
Organizations and Individual Supporters
American Friends Service Committee- Friend of a Friend Program
Curtis Cooper, Esq., National Lawyers Guild-Maryland Chapter
Taalib Saber, Attorney at Law
Noah Gimbel, Esq.
Abbe Smith, Professor of Law, Georgetown University
Dr. Maria Moreno Gonzalez, Georgetown University