Mainers in jail ‘paying the price’ for lack of action to prevent outbreaks

As the COVID-19 outbreak at the York County Jail worsens, criminal justice advocates say the state was repeatedly warned about the potential for the virus to spread among incarcerated populations and that not enough has been done to keep inmates safe. 

As of Wednesday, there were 74 cases of COVID-19 associated with the outbreak at the York County Jail, with 38 inmates infected, said Robert Long, communications director at the Maine Center for Disease Control and Prevention. The cluster at the jail has been linked to a coronavirus outbreak that began at a Millinocket wedding in August. 

Not enough done to prevent outbreak

Emma Bond, legal director at the ACLU of Maine, said that earlier in the pandemic the state made a concerted effort to reduce its incarcerated population. In the months after the pandemic began an increased reliance on summons rather than arrests, additional oversight before a person was arrested and other shifts in practices succeeded in reducing the number of people jailed in Maine by an average of about 40 percent. 

But those changes didn’t last, Bond said, as the incarcerated population has started to creep up again.

“Unfortunately, we’ve seen examples of people still getting arrested for really low-level things, like drinking in public,” she said. “Things that are not a danger to anybody, and yet we’re seeing people introduced into a dangerous jail setting for many low-level offenses.”

“We know that COVID-19 is particularly dangerous in close congregate settings,” Bond added. “And we’ve seen that across the country, the largest COVID-19 clusters have been associated with correctional facilities like prisons and jails where the virus can spread like wildfire.” 

Bond, who said Maine’s incarcerated population is too large, called for the state to return to the shift in arrest practices made in the early stages of the pandemic. 

“That is the absolute minimum [needed] to protect people and reduce jail populations during this challenging time,” she said. 

Tina Nadeau, a defense attorney who works in Portland, said warnings from advocates to the state about the dangers of prisons and jails during the pandemic have been largely ignored. Nadeau added that the fears many in the criminal justice community had all along have been realized with the outbreak at the York County Jail.

“Sheer unearned luck has prevented massive spread in our jails and prisons. Well, that luck has run out, and incarcerated people and the people who work in these jails and prisons are paying the price,” she wrote in email, adding that those incarcerated “have not been adequately protected.” 

Such warnings from advocates to the state included an April letter sent by a broad coalition of groups to Gov. Janet Mills and Maine Department of Corrections Commissioner Randall Liberty saying an outbreak in state prisons and jails was “not a question of ‘if,’ but ‘when.’” 

In that letter, the groups also criticized what they called a lack of a “coordinated, consistent, or transparent statewide effort to address the health and safety of incarcerated people” in the state and called for releasing those imprisoned in Maine through commutations, reprieves, medical furloughs or community release. The groups added that in cases where release was not possible, all available resources, including expedited testing, should be used to ensure those in prisons and jails are as safe and healthy as possible during the pandemic. 

State responds

Anna Black, director of government affairs at the Maine Department of Corrections (MDOC), wrote in an email that the department takes “the safety of our staff and clients very seriously.” Black pointed to documents on the department’s website that include plans to test anyone at a correctional facility who is symptomatic and to conduct universal testing at a facility following a positive COVID-19 case. 

Another MDOC document specifies the importance of enforcing social distancing, hand hygiene and face covering requirements in prisons and jails.  

However, Nadeau said such public health measures can be “nearly impossible in jail and prison settings,” saying the solution is instead to have fewer people in these facilities. 

“We need to release people being held on misdemeanor charges,” she wrote. “We need to have sheriffs release people who are being held in jail in execution of sentences. We need the governor and the commissioner of the Department of Corrections to grant early releases and issue commutations and pardons for those who are most vulnerable to succumbing to this disease. The cry for common sense and leniency — for prioritizing public health as part of public safety during a global pandemic — has been largely unanswered.” 

Black said the MDOC is “not releasing individuals in our custody early specifically because of COVID-19.” However, she pointed to two programs put in place before the pandemic — and enhanced during the crisis — that allow incarcerated individuals who meet certain criteria to finish some of their sentence while living in the community.

In April, Mills said she was not considering using executive authority to commute sentences of Maine inmates, pointing instead to an existing early release-program.

In response to media inquiries following a smaller outbreak at the Maine Correctional Center in Windham in May, the MDOC and CDC announced that they would not be conducting random testing at correctional facilities, a measure some other states have implemented.

York County Jail an example of dangers of incarceration during pandemic

The outbreak at the York County Jail has become a real-life example of advocates’ warnings to the state about the risks of correctional facilities amid a pandemic. 

Robert Ruffner, a defense attorney who mainly practices in York, Cumberland and Kennebec counties, said sending people to the York County facility is unacceptably dangerous right now.

Ruffner, who was “lawyer of the day” for prisoners at the York County Jail on Monday, said a condition of bail release for those inmates was that they quarantine for 14 days after leaving the facility. Ruffner said that condition is proof that no one should be sent to that jail right now. 

“That [condition] must mean that there’s a very significant risk that the people going into the jail are getting exposed,” he said. “And that’s a huge problem. If that’s the case, they should stop bringing people to that jail until [quarantining after release] is no longer necessary.”   

Ruffner did say that his list of clients Monday was only four people, which was much smaller than usual. He said that could be evidence of an effort to slow down the churn of people into the jail, but added that he didn’t know for sure. 

The York County District Attorney’s Office did not respond to a request for comment. 

The situation at the York County Jail may have been spurred by poor public health practices. The Portland Press Herald recently reported that guards and inmates at the jail were not required to wear masks before the outbreak. That flew in the face of MDOC rules, with Black saying the department “requires face coverings for inmates and staff.” 

The York County Jail did not respond to a request for comment. 

Dr. Nirav Shah, director of the Maine CDC, said at a media briefing Tuesday that the department has strongly recommended the wearing of masks at all times in correctional facilities. 

“We’ve recommended face coverings as a bedrock public health principle going back several months now,” he said. “It’s been a very strong recommendation for any group of individuals, be that in a county jail or an office building like where I am right now.”

Downeast Correctional Facility | Maine Department of Corrections

But it may not just be the York County Jail where public health rules and recommendations are not being followed. Ryun Anderson, executive director of the Restorative Justice Institute of Maine, said she’s aware of concerns about mask-wearing in other correctional facilities.

“We have heard from folks we work with inside that staff do not always wear their masks and when politely asked by incarcerated folks to comply, they do not always do so, or they put it under their nose, which is not protecting those around them,” Anderson, who mostly works with those in prisons, wrote in an email. “Most are wearing masks, but these few create worry among incarcerated folks.”

Anderson said it’s unclear what accountability there is to enforce mandates to wear masks and personal protective equipment in correctional facilities. 

Jailings during pandemic put existing inequalities into greater focus

Another concern spurred by the outbreak of COVID-19 at the York County Jail is that many at the facility are there for minor offenses. 

Carina Cilluffo, a criminal defense attorney practicing in York and Cumberland counties, said it’s unconscionable to put people in a crowded place like a jail for small crimes given the realities of the pandemic. 

“There is no universe in which a minor violation of your conditions of release should result in a death sentence or even exposure to a small chance of a death sentence,” she said.  

In addition to minor infractions, many people at jails are there because they have not been able to post bail. 

Bond said this means that low-income people are especially likely to be incarcerated in jails because they don’t have the necessary funds to pay for their freedom. 

“That’s obviously an equity issue,” she said. “And it’s a racial justice issue because we know that people of color are disproportionately likely to be incarcerated for offenses that might not land someone else in jail. It’s a racial justice issue, it’s an economic justice issue and it’s a public health issue.” 

Anderson said inequities that already existed in prisons and jails have only been exacerbated by the pandemic.

“What we are seeing during COVID in the criminal justice system is a magnifying glass on health disparities for folks who are in the criminal justice system, especially BIPOC [Black, Indigenous and people of color] folks, LGBTQ folks and people living in poverty,” she wrote. “These disparities are not new, just made more visible by COVID.” 

Photo: York County Sheriff’s Office Facebook page