Federal and state correctional facilities 1 in the United States of America incarcerate a high proportion of disabled persons. The most recent data available comes from the U. S. Department of Justice's Bureau of Justice Statistics. As of 2011-2012, state and federal prisoners are nearly three times as likely to report having a disability as the nonincarcerated population, while those in local jails are more than four times as likely. 2 Forty percent of state and federal prisoners have a chronic illness. 3

This essay begins with an overview of the risk that COVID-19 poses to inmates with disabilities. These individuals are at high risk of serious illness or death because prisons are a hotbed for spreading the virus, and because of vulnerable health status associated with age, medical conditions, and race/ethnicity. The incarcerated population in the U.S. is overwhelmingly composed of people of color who have been subjected to multiple and overlapping forms of marginalization and oppression. In this article apply a Critical Disability Studies perspective to examine the reasons why wardens, government attorneys, and judges have largely turned their backs on the suffering of disabled inmates. Criminal status may justify incarceration, but it does not excuse conditions of confinement so dangerous that they violate human rights.

I next examine the inadequacy of constitutional and statutory protections to protect inmates' rights. "Compassionate release" statutes are too narrowly drawn to allow release of most prisoners at high risk of COVID-19, and they are administered too stringently by the wardens, prosecutors, and judges.

I offer recommendations to address the dire conditions faced by inmates with chronic illnesses and other disabilities, including modification of the criteria for release of those unlikely to pose an active threat, and safer conditions of confinement for those who must remain behind bars.

The Risks Faced by Incarcerated Individuals with Disabilities

The U.S. Centers for Disease Control (CDC) has explained that correctional facilities are particularly susceptible to COVID-19 due to

…crowded dormitories, shared lavatories, limited medical and isolation resources, daily entry and exit of staff members and visitors, continual introduction of newly incarcerated or detained persons, and transport of incarcerated or detained persons in multi-person vehicles for court-related, medical, or security reasons. 4

Correctional facilities represented 19 of the top 20 clusters of confirmed cases of COVID-19 in the U.S. as of August, 2020. 5 The mortality rate for inmates was twice as large as than the general population. 6 As of December 16, 2020, the Marshall Project reported 250,000 virus cases in state and federal correctional facilities. 7 The U.S. Bureau of Prisons (BOP) tallies case incidence in federal prisons. As of March 8, 2021, 27% of federal prisoners tested positive (46,938 out of 106,389 completed tests). 8 Prisoners have offered moving descriptions of what it is like to live in prison during the pandemic. 9 A recurring theme is that inmates who are powerless to help themselves can't obtain needed medical care or avoid crowded, unsanitary conditions. They experience an increased mental disturbance and trauma.

CDC has identified those in the general population who are especially susceptible to the virus. The elderly account for eight out of ten virus-related deaths. 10 Individuals of any age are especially vulnerable if they have certain chronic diseases (cancer, kidney disease, chronic obstructive pulmonary disease, heart conditions, obesity, sickle cell disease, and type two diabetes). 11 In the next category, adults who "might be" at increased risk -due to moderate or severe asthma, hypertension, dementia, liver disease, or cystic fibrosis. respiratory conditions, cardiovascular conditions, type one diabetes, sickle-cell anemia, and immunosuppression. 12

CDC finds that people of color are especially vulnerable during this pandemic, attributable to housing, poverty, limited healthcare, and a high rate of pre-existing medical conditions. 13 There is a far higher incidence of obesity, hypertension, diabetes, asthma among African Americans than in the general population. 14 More detail on health disparities relevant to vulnerability to the virus is provided by a study prepared for the National Commission on COVID-19 and Criminal Justice. It reported that 42% of African American adults had hypertension in 2017, compared to 28% of White adults. 15 Compared to White adults, the risk of having a diabetes diagnosis is 77% higher among African Americans, and 66% higher for Latinos. 16 Half of the Americans who died during from early 2020 through July, 2020 were people of color; African Americans accounted for 70% of Chicago's COVID-deaths while comprising 29% of the population. 17

While disability alone "may not be related to higher risk," CDC advises that adults with disabilities "are three times more likely than adults without disabilities to have heart disease, stroke, diabetes, or cancer than adults without disabilities." 18 Disabled individuals at increased risk include:

• People who have limited mobility or who cannot avoid coming into close contact with others who may be infected;
• People who have trouble understanding information or practicing preventive measures, such as hand washing and social distancing;
• People who may not be able to communicate symptoms of illness. 19

Advocates for disabled inmates must emphasize the heightened vulnerability of inmates with chronic illness and to inmates with physical or cognitive impairments.

The U.S. Bureau of Justice Statistics has found that 32% of state and federal prisoners in 2011-12 had a disability, classified as related to hearing (6.2%); vision (7.1%); ambulatory (10%); cognitive (19.5%); self-care (2.1)% and independent living (7.5%.) 20 Multiple disabilities are reported by 13% of prisoners. 21 It is evident that inmates with intellectual disability, or visual or hearing loss, may have difficulty comprehending instructions given to the general prison population, and that inmates with ambulatory limitations may have special difficulty in social distancing.

More than half of inmates with a disability reported a co-occurring chronic condition such as cancer, high blood pressure, stroke-related problems, diabetes, heart-related problems, kidney-related problems, arthritis, asthma, and cirrhosis of the liver. 22 Older inmates are especially likely to exhibit diabetes mellitus, cardiovascular disease and liver disease, as well as dementia. 23 Imprisonment creates and exacerbates disability. Factors include increased exposure to HIV, hepatitis C, and other infectious diseases; deficiencies in sanitation, ventilation, nutrition, and medical care; and trauma from rape and other abuse. 24

A Critical Disability Studies Perspective on the Problem

Critical Disability Studies is a theory and praxis that, as articulated by Subini Annamma et al., privileges "the voices of marginalized populations," and focuses on ways that "the forces of racism and ableism circulate interdependently." 25 Although originally developed in the educational context, core tenets apply to disabled inmates. A Critical Disability Studies perspective "considers how historically and legally "dis/ability and race have been used to deny the rights of some citizens." 26 The disabled inmate is the product of a system that, by depriving individuals of economic and educational opportunity, increases the likelihood of incarceration.

Negative synergies between poverty, race, disability, and education explain why a high percentage of prisoners have physical or mental disabilities. Disability creates poverty and poverty creates disability. The U.S. Bureau of Labor Statistics reports that adults with disabilities are more likely to be unemployed or underemployed across race and socioeconomic class. 27 Unemployment and poverty are highest among African Americans, Latinx, and indigenous people, as well as among those with lower levels of education. 28 Poverty is associated with a broad spectrum of disabilities, including chronic diseases like diabetes, malnutrition, deficits in health care, and unsafe working or living conditions. 29

Disabled prisoners are overwhelmingly people of color, often victimized by poverty, abuse, and trauma. African Americans are imprisoned at five times the rate of whites in state prisons and at seven times the rate of whites in federal prisons. 30 African Americans comprise 12% of the U.S. adult population but 33% of the prison population. 31 Latinx comprise 16% of the general population and 23% percent of the prison population. 32

The National Commission on COVID-19 and Criminal Justice issued a report in December, 2020, that made recommendations for "reshaping criminal justice" after the rampant spread of COVID-19 in prisons and jails. 33 Among the Commission's findings were that the pandemic "may have exacerbated racial and ethnic disparities" because the proportion of jail inmates who were Black males 25 years and younger actually increased. 34

Nirmala Erevelles writes that the "contemporary violence of mass incarceration" reflects "a complex intersectional politics of race, class, and disability where incarcerated bodies become profitable commodities in the prison-industrial-complex of late capitalism." 35 Erevelles cites Julia Kristeva's insight that "the abject" threatens notions of an "illusory normative"; individuals with disabilities represent an abnormal and feared difference. 36 Similarly, Erevelles observes, "the very real walls of the prison serve to separate the 'moral us' from the 'depraved them.'" 37

Why are inmates so neglected and exposed to risk of serious illness and death? Applying Erving Goffman's well-known Theory of Stigma, disabled prisoners incur social stigma based on disability ("abominations of the body"), criminal status ("blemishes of individual character") and race/ethnicity (prejudice against the "tribe"). 38 The moral philosopher Judith Butler distinguishes between "apprehending a life" and recognizing the figure as fully human. A figure "can be apprehended as 'living,'" but not necessarily "recognized as a life." 39 Lives that are not recognizable are also not grievable: "[t]hey cannot be mourned because they are always already lost or, rather, never 'were.'" 40

During an epidemic, there is a tendency to attribute disease to moral delinquency. In AIDS and Its Metaphors, Susan Sontag observes that the public may infer that society as a whole is being metaphorically judged for the deviant behavior of a subset of individuals. 41 Those who are carriers of dreaded diseases are disgraced as "calamitous," "evil," and "repulsive" 42

The U.S. accounts for 20% of the world's incarcerated population, although representing 5% of the world's population. 43 Only 5.3% of those confined in federal prisons and jails have committed violent offenses. 44 One-third of those incarcerated are held in local jails, including 70% confined without bail who have not yet been convicted. 45 In response to the pandemic, local jails initially reduced prison populations significantly, by avoiding arrests for minor "broken-window" offenses, and releasing individuals detained pretrial or those serving short sentences for minor misdemeanors. Jail populations that declined early in the pandemic have begun to rise as inability to hold jury trials has increased the number of individuals in pre-trial detention who are unable to pay bail. 46 Georgetown Law professors who direct criminal justice clinics have called for permanent closure of misdemeanor courts that have been suspended by COVID. 47 It is estimated that the typical state prison system reduced its population by about 13 percent between January and August, 2020. 48 The federal inmate population has declined from 154,000 on April 1, 2020 to 125,000 as of March 8, 2021. 49

The Prison Policy Initiative has identified many paths through which release of inmates is possible if a will exists. In addition to releasing the medically vulnerable and elderly, the number of prisoners can be reduced by expediting applications for parole, by releasing prisoners near the end of their term to home confinement, and by declining to admit or releasing individuals who have committed technical (not otherwise criminal) violations of conditions of parole or probation. 50

Why is there such a reluctance to decarcerate? Prisoners (and, in many instances, ex-felons 51) are non-voters, nor are their families valued constituents. Inmates are generally blamed for their criminal activity, without consideration of contributing factors— intersecting vectors of poverty, trauma, homelessness, educational deficit, substance abuse, and racism. The public's indifference to the risk that COVID-19 poses to inmates was demonstrated by political backlash when several states considered elevating prisoners to the top tier category for distribution of vaccines. 52

Constitutional Protections Against Cruel and Unusual Punishment

One might hope that the U.S. legal regime would guarantee the right of inmates to safe confinement, but such is not the case.

Early in the pandemic, the American Civil Liberties Union (ACLU) joined with disability rights groups in several states seeking emergency measures to release the class of non-violent disabled prisoners. Each of the court decisions rejected the argument that corrections officials have a clear legal duty to reduce prison populations. 53

Constitutional protections for inmates include the right to reasonable safety and medical care. The rationale is straightforward: "An inmate must rely on prison authorities to treat his medical needs; if the authorities fail to do so, those needs will not be met." 54 In Farmer v. Brennan, the U.S. Supreme Court ruled that prison officials' "deliberate indifference to a substantial risk of serious harm to an inmate" infringed the constitutional protection against cruel and unusual punishment. 55 However, the Farmer decision emphasized that the "deliberate indifference" test includes both an objective and subjective prong. To satisfy the objective prong, an inmate must show "that he is incarcerated under conditions posing a substantial risk of serious harm." Under the subjective prong, "acting or failing to act with deliberate indifference to a substantial risk of serious harm to a prisoner is the equivalent of recklessly disregarding that risk."

U.S. District Court Judge Colleen Kollar-Kotelly granted preliminary injunctive relief requiring immediate improvement in conditions to mitigate exposure at the D.C. jail, based on a finding of "deliberate indifference": infection rates at the jail were fourteen times higher than in the city as a whole. 56 Social distancing was not enforced; sanitation measures were inadequate; medical care was deficient; and conditions in isolation units were punitive. Release of inmates was not an authorized remedy, but the judge required immediate improvement in conditions of confinement.

More frequently, courts have rejected Eighth Amendment claims that prison officials acted with "deliberate indifference" in failing to protect inmates, even where facilities demonstrated a high rate of the virus. Typically, after suit is filed, prison officials who have neglected precautions implement some improvements, such as providing inmates with masks, soap, and disinfectants, limiting group gatherings, and offering training and screening. Based on these commitments, courts have rejected claims that officials showed "deliberate indifference"—even though prisoners continued to sleep in tightly-packed dormitories and social distancing was impossible due to overcrowding. 57 Many of these facilities are the subject of repeated complaints that officials have reneged on promises, to improve sanitation. Private prisons ae especially notorious. 58

The Compassionate Release Program and its Failings

A second potential remedy for inmates with serious medical conditions arises from federal and state statutory provisions that provide, in narrow circumstances, for compassionate release. There has been a significant amount of litigation under the compassionate release provisions of the First Step Act, a 2018 federal statute that authorizes courts to modify terms of imprisonment for federal prisoners. 59 As to prisoners no longer deemed to be dangerous, the First Step Act allows release of those terminally ill; those non-violent prisoners who are at least 60 years old and who have served at least two-thirds of their sentence; and those whose medical condition are so seriously debilitated that they cannot carry out self-care and are confined to a bed or chair. 60

In addition to release based on terminal illness, old age, and severe debilitation, a "catchall provision" allows courts to order compassionate release if the court makes a finding that "extraordinary and compelling reasons" for release exist, and that a prisoner "is not likely to present a danger to the community." 61 A New Hampshire court recently granted compassionate release to an individual with a respiratory condition attributable to bronchitis and heavy smoking. 62 The court found that the inmate's condition satisfied the statutory criteria of "extraordinary and compelling reasons" to warrant a sentence reduction and that the inmate, convicted of trafficking oxycodone, was "not likely to pose a danger to the safety of any other person or to the community" if released. 63

The compassionate release provisions of this federal statute were not designed with COVID-19 in mind and require individual ad hoc litigation of each prisoner's medical condition and medical history. The case law is inconsistent on the types of conditions that render an inmate vulnerable to COVID-19, for example, the circumstances under which asthma and hypertension are sufficient to show significant susceptibility. Courts disagree on whether the inmate needs to show that the prison in question has a higher rate of incidence versus the surrounding community; the age of the prisoner and relevance of the amount of the sentence that (s)he has already served, and the need to exhaust administrative remedies. There is no right to counsel and thus it is hit-and-miss whether individual prisoners can find pro bono counsel to pursue their claim. Tellingly, wealthy and powerful prisoners such as Paul Manafort and Michael Cohen who have the benefit of high-priced lawyers are sent home. 64

The compassionate release program has been administered with considerable stinginess. Inmates must usually generally seek release from prison wardens before pursuing judicial remedies. 65 The Marshall Project reports that federal prison wardens have denied 98 percent of compassionate release requests. 66 State prisoners fare no better. Recently, a 67-year-old Virginia inmate who was suffering from lung and liver cancer, diabetes, and hepatitis C died of COVID-19 several months before his release date. The Virginia Department of Corrections denied early release despite the pleas of his family and the Virginia chapter of the ACLU. 67 This inmate was serving a sentence for theft and violation of probation conditions related to a prior drug conviction—not a violent crime.

It is typical for government attorneys to oppose compassionate release claim with a battery of objections. 68 Even if the prisoner suffers from serious health conditions, such as glaucoma or severe depression, if these conditions are not identified with increased susceptibility to the virus, the government will generally oppose compassionate release. When a prisoner presents with symptoms associated with the virus, the government typically minimizes the severity of the inmate's asthma, obesity, or hypertension. The government often opposes evidence of rehabilitation by pointing out any disciplinary infraction committed by the inmate, or by any instance in which the prisoner failed to participate in programs on money management or vocational training.

An important barrier arises from the statutory requirement that the judge find that the inmate "does not pose a risk of danger to the community" if released. Unfortunately, this ostensibly sensible condition has deterred the release of inmates who otherwise qualify for release even if the violent crime occurred decades earlier. A case in point is that of Calvin Tinsley. 69 The District of Columbia trial judge found that in all respects but one, Tinsley satisfied the criteria for compassionate release: he was severely obese (over 300 pounds), suffered from hypertension, asthma, and other medical conditions including a pituitary tumor that necessitated brain surgery. Moreover, Judge Fisher commended Tinsley for his solid disciplinary record, evidencing rehabilitation. Tinsley was incarcerated at the Elkton, Ohio facility notorious for its high incidence of virus cases. Yet Tinsley's chances for compassionate release were doomed by the fact that he was sentenced for committing premeditated murder 13 years prior to the filing of the motion.

An important reason why the reduction in prison population has lagged so badly is judges' fears that a prisoner whom they release will commit a violent crime. State judges, who are elected in most states, do not want to be perceived as soft on crime. In the rare case that a convicted murderer has been released as a result of COVID-19 headlines follow. 70 "Tough-on-crime" political considerations deter officials from releasing more inmates—even though violent crimes would more effectively reduced by investment in education; mental health, drug treatment, and other social services; and job creation.

Beyond the Risk of Contagion: Other Threats to Disabled Inmates

Even prior to the pandemic, prisons failed to provide safe conditions for disabled prisoners. A report by Amplifying Voices of Disability in Prison (AVID) describes outrageous incidents in which disabled inmates were denied access to medication, prosthetic limbs, hearing aids, and sadistic abuse of those with cognitive impairments. 71 A pending California court case describes guards who mock and kick disabled inmates and toss inmates from their wheelchairs. 72

The pandemic has worsened conditions for disabled inmates. Title II of the Americans with Disabilities Act (ADA) prohibits discrimination against disabled inmates and requires that prison officials provide inmates with reasonable accommodations to access programs and services. 73 In normal times, detainees with visual or hearing impairments should be provided with audio, large print, or Braille materials to communicate information about prison rules and policies. Failure to communicate can disadvantage the disabled inmate in many ways, including increased disciplinary sanctions. However, during the pandemic, communication failure greatly increases survival risk. While in response to court cases, officials may commit to offer training to educate inmates about proper sanitation procedures and the need to practice social distancing (somehow), there is no assurance that that inmate training materials are accessible to those with physical or cognitive impairments.

In theory, the ADA entitles disabled inmates to reasonable accommodations affording access to the same array of programs that are offered to non-disabled inmates, including therapy, drug treatment, occupational training, personal health, religious services, and money management. 74 As COVID-19 has spread, many facilities have placed all inmates on lockdown, drastically reducing time out of their cells. This policy precludes disabled prisoners from accessing physical and occupational therapy. Moreover, when disabled inmates cannot access rehabilitation programs, they are at a disadvantaged position in demonstrating rehabilitation needed to qualify for parole or compassionate release.

Use of solitary confinement is euphemistically (mis)labeled as "administrative segregation" or assignment to "special housing units." Contrary to the popular misimpression that solitary confinement is limited to short duration or applied to a small number of the most dangerous prisoners, solitary confinement is pervasive and long-lasting. Nearly 20% of inmates have spent some time in solitary confinement, according to a study by the Bureau of Justice Statistics. Approximately 10% of all prison inmates and 5% of jail inmates have spent 30 days or longer in restrictive housing. 75 The pandemic has greatly increased solitary confinement. It is estimated that in June 2020, the number of inmates confined to solitary increased from 60,000 to 300,000. 76

Even in normal times, disabled inmates are more likely to be punitively assigned to solitary confinement for noncompliance with instructions that they did not hear or comprehend, and they are more likely to be grievously neglected once confined. 77 The effect of solitary confinement on prisoners with mental illness is especially drastic. 78 The medical community opposes solitary confinement of the mentally ill. 79 According to a study by the U.S. Bureau of Justice Statistics, 37% of prison inmates have a history of mental health problems: 24% percent have been previously diagnosed with major depressive order, 17% percent with bipolar disorder, 13% with a personality disorder and 12% with post-traumatic stress disorder. 80 One-third of jail inmates have been previously diagnosed with a major depressive disorder and almost one-quarter with bipolar disorder. 81 Yet 29% of prison inmates and 22% of jail inmates with current serious psychological symptoms were confined in their cells during the 12 months covered by the study. 82

Are Legal Remedies an Adequate Answer?

Jamelia Morgan argues that "current Eighth Amendment jurisprudence in prison conditions of confinement cases in some ways requires lawyers to engage in ableism to protect their clients from harsh and inhumane treatment." 83 "[A]bleism involves labeling— or pathologizing—- bodies and minds as deviant, abnormal, incapable, incompetent, dependent, or impaired." 84 Such lawsuits tend to portray disability "as a type of weakness, pathology, or deficiency." 85 Morgan urges advocates to portray clients "as disabled not only because of medical diagnosis but also because of disabling prison and jails conditions," and thereby "challeng[e] the more insidious, systematic ways that ableism propagates in carceral spaces." 86

Other Critical Disability Studies scholars doubt the efficacy of legal reform and call for prison abolition. Liat Ben-Moshe recognizes that rare victories in litigating prison conditions can benefit individual plaintiffs, but emphasizes the limitations. In a few egregious cases courts have ordered facilities to be shut down, but the end result has been to transfer inmates to other prisons, not to reduce prison populations. 87 Rachel Herzig argues that litigation challenging prison confinement "chips away at the system" but fails to challenge its legitimacy…[C]laims of a healthy prison are untenable." 88

The advocacy group PREAP advanced a comprehensive program to drastically reduce, if not abolish, imprisonment. 89 PREAP proposed a policy of decarceration (release of the great majority of inmates); excarceration (diverting those not yet incarcerated into alternative programs or decriminalizing offenses); a moratorium on building new prisons; and restraint of the dangerous few who must remain incarcerated (under humane, non-punitive conditions). For Ben-Moshe the proposal does not go far enough because prisons are not altogether eliminated; she seeks a "noncarceral world" which focuses on prevention. 90 Ben-Moshe acknowledges that her approach is "utopia[n]." 91

I answer the question -whether legal remedies are adequate in the negative, but plead that legal remedies should be expanded because they are the best tools at our disposal. My recommendations are aspirational but practicable. Compassionate release programs have been administered with short-sighted stinginess. While broader initiatives leading to decarceration and alternatives to imprisonment are pursued, there should be immediate release of inmates who pose no danger to society, including the disabled, the elderly, and those inmates whose health status renders them vulnerable to COVID-19.

The goals of criminal punishment—deterrence, incapacitation, rehabilitation, and retribution 92 —are not served by detaining disabled inmates. Because they are not likely to pose a danger to the public, the incapacitation objective for incarceration is inapplicable. Nor does reduction in prison populations conflict with deterrence and retribution—as U.S. prison terms are so lengthy due to mandatory sentencing and other factors. Alternative diversion, including treatment for substance abuse and mental illness, are far more likely to rehabilitate and reduce recidivism.

Specific Recommendations

Compassionate Release Must Be Expanded

Wardens and other prison officials should abandon their largely "just say no" approach to inmate release. Just as police need to re-fashion their identity as guardians rather than warriors, correctional officials should re-think their roles and resist rote opposition to release of those vulnerable to the virus.

The Campaign for Compassionate Release, a coalition of advocacy groups, urges that "whenever public safety permits it, elderly prisoners and those with physical or mental disabilities that limit their ability to provide self-care in prison should be released." 93 Courts should take the leap that commission of a violent crime in the distant past should not automatically preclude compassionate release. As the Prison Policy Initiative points out: "Long sentences are not necessary for public safety… It is a well-established fact that crime tends to peak in adolescence or early adulthood and then decline with age, yet we incarcerate people long after their risk for violence has diminished." 94 The Sentencing Project recently issued a report advocating limitations on sentences to twenty years and reducing the geriatric population. 95 One in seven of U.S. prisoners is sentenced to life imprisonment and over 30% of "lifers" are at least 55 years old. 96 More than two-thirds of the lifers are people of color. 97

The consensus National Commission on COVID-19 and Criminal Justice has similarly criticized the narrow grounds for compassionate release that now prevail and the bureaucratic obstacles such as exhaustion of administrative remedies. The Commission urges that local, state and federal governments adopt protocols to expand "emergency release mechanisms" so that those whose health condition renders them vulnerable to communicable illness. 98 Specifically with respect to mentally ill individuals, in lieu of prison sentences, alternatives should be pursued such as diversion programs, mental health courts and treatment services. 99

Both state and local legislators should adopt legislation furthering compassionate release. U.S. Senators Brian Schatz and Dick Durbin have introduced the Emergency GRACE Act 100 that would accelerate the BOP approval process for compassionate release by directing that BOP identify those who are at a higher risk during a public health emergency, including defendants over the age of 60; defendants with a terminal illness; and defendants with chronic disease or medical vulnerability. The legislation would authorize pro bono counsel, and provide direct access to court without needing to exhaust an administrative process. Individuals who are released would be able to access Medicaid shortly after their release.

Prison officials should identify those who are at a higher risk of death from the disease or illness from COVID-19, including inmates over the age of 60, and individuals with autoimmune disorders or serious medical conditions, including heart disease, diabetes, HIV, respiratory disease, or cancer.

The public needs to be educated about the high costs of incarcerating elderly inmates and disabled inmates. Older prisoners cost about $16 billion annually, including more than $8 billion in medical expenses. 101 However, inmates over 50 convicted of violent crimes have a low rate of recidivism. 102 Many individuals who use wheelchairs or walkers, as well as those suffering from chronic illness, pose an exceedingly low risk to public safety. The Prison Policy Initiative estimates that the U.S. spends $80 billion per year on expenses for public prisons and jails. 103 The average earnings prisoners lose over their lifetime exceeds $500,000. The Sentencing Project points out that it costs an estimated $1 million per inmate for those who spend 40 years in prison. 104 The Cato Institute, a Libertarian think tank, agrees. 105 The First Step Act, which made modest improvements in shortening sentences and other criminal reform, was the result of a bipartisan consensus. If we are to forge a similar consensus for expanding compassionate release, economic considerations must be joined to ethical commitment.

As to inmates who remain incarcerated, correctional facilities should offer adequate medical care, and follow to the maximum practical extent CDC Guidance on Management of COVID-19 in Correctional and Detention Facilities. 106 It is not sufficient that officials wait for litigation to provide sanitation supplies, mask availability, soap and disinfectant, and safety training. Given recurring complaints that correctional facilities often lapse on commitments made in response to litigation, audits and inspections should assure continued compliance with stated policies and conditions imposed in court orders.

Special attention needs to be given to assure that instructions and facilities are readily available and clearly communicated to those with visual or hearing impairments or intellectual disabilities. This effort requires not only the provision of accessible materials to those with visual or hearing impairment but concentrated attention on those who may be in need of a more intensive counseling and support.

Jails and prisons should not routinely resort to lockdowns and solitary confinement as a means of containing the spread of COVID-19. Isolation and quarantine units should be established as medically necessary rather than confining inmates to their cells as a mechanism for infection control.

In addition to jails and prisons, lawmakers should attend to immigration facilities, mental institutions, and other sites of incarceration. In his landmark work Asylum, Erving Goffman addressed mental institutions and other "total institutions" in which people are locked away from the wider world by virtue of dangerousness—such as mental institutions and prisons—or by the nature of their work—such as monasteries and military barracks. 107 Asylum was based on Goffman's personal investigation of St Elizabeths in the 1960s. Goffman described the total institution as one which dominates inmates from the moment of admission, by stripping them of individual identity and personal possessions, and by applying a relentless policy of search and surveillance. The total institution imposes "a series of abasements, humiliations, and profanations of self." 108 Virtually every movement is controlled, such that the inmate is unable to protect himself from abusive treatment.

COVID-19 has raged in mental hospitals such as St Elizabeths, as well as in immigration facilities under the jurisdiction of U.S. Immigration and Customs Enforcement (ICE). Today St Elizabeths is quite literally a prison, as it functions as the criminal psychiatric detention facility of the District of Columbia. 109 Disability Rights DC, the publicly-funded protection and advocacy legal services agency for the disabled, issued a report in March 2021 detailing a tragic incidence of infection and deaths from COVID-19. 110 The report describes pervasive failures to isolate the sick and documents the hospital's lack of expertise in managing the spread of disease. The great majority of St. Elizabeths' "patients"—call them inmates as they are locked up—are people of color. 111 St Elizabeths has a history of excessive use of restraint and seclusion on its mentally ill patients. DC law only allows restraint or seclusion when "necessary to prevent serious injury" when "less restrictive interventions have been considered and determined to be ineffective." 112 However, Disability Rights DC reported a total of 149 restraints and 55 seclusions in the first six months of 2020, and detailed specific cases when restraints were imposed on patients who posed no immediate threat, further traumatizing and destabilizing the physical health and mental wellbeing of the patients. 113

Through 2020, there was an exceptionally high rate of COVID-19 at immigration detention facilities. 114 Disability rights groups filed a major class action lawsuit in 2019, Fraihat v. ICE, detailing the grossly inadequate physical and medical care experienced by disabled inmates in ICE facilities; the lead plaintiff, Faour Fraihat, was a blind inmate whose vision problems were ignored. After the outbreak of COVID, a California district court judge issued a nationwide injunction in April 2020 ordering ICE to make "custody redeterminations" of detainees with high medical risk and release those not found to pose a danger. The court ordered extensive improvements in sanitation and other safety measures. 115 Yet, outbreaks of the virus in ICE detention facilities continue unabated, including an alarming incidence in facilities administered for ICE by for-profit corporations. For example, at the Farmville Virginia facility, almost 90% of detainees tested positive for COVID on July 29, 2020. 116 As of August 1, 2020, ICE reported that 20% of all immigrant detainees screened to date tested positive for COVID-19. 117 Overcrowding has been severe, and staff have neglected to wear masks or other protective equipment. 118

I have argued that it is unconscionable to expose prisoners to the virus when their prison sentence was specifically designed to impose appropriate punishment. Since those who have entered the country illegally are civil detainees, it is even less justifiable to impose punitive conditions of confinement.

While ICE reduced its detained population by the end of 2020, as of March, 2021, an extraordinary surge of migrants at the Mexican border threatens to pack migrants into detention centers at a record rate. A South Texas tent facility was at 1500% of its pandemic-rated capacity. 119 The Civil Rights and Education Enforcement Center (CREEC) has offered recommendations to the Biden Administration to address the threat that COVID-19 poses to detained immigrants with disabilities, including: Immediate evaluation of all detainees to determine whether their medical conditions warrant release under Fraihat; diversion of immigrants with disabilities from detention facilities so that they can receive services in community settings; and cancellation of contracts with for-profit detention centers. 120 As to those disabled immigrants who remain detained, CREEC recommends providing assistance to those with cognitive disabilities; accommodations for those with physical, visual, or hearing impairments; and discontinuation of solitary confinement. 121

Conclusion

The neglect of prisoners during the Pandemic reflects a combination of racism, classism, disablism and stigma. The challenge for disability advocates is to build a coalition to foster widespread release, and improve conditions for those who remain incarcerated. For prison policy advocates, who urge compassionate release and reduction of prison populations, prisoners with disabilities -exemplify why continued incarceration is generally unjustifiable on the grounds of deterrence of crime or public safety.

Prisoners lack many civic rights, but they are not divested of human rights consistent with their inherent dignity as persons. 122 These rights include basic rights to health care, as well as avoidance of torture and ill treatment. 123 The UN has called upon states to prevent violations of the human rights of prisoners held in overcrowded and unsanitary conditions out of respect for their right to "physical and mental integrity." 124

Americans recoiled in horror when the injustices of Abu Ghraib were revealed; polls indicate widespread disapproval of torturing prisoners, even those who were suspected of being foreign terrorists. 125 Allowing U.S. inmates to suffer in prison under unsafe conditions that can lead to serious illness and even death -is a similar human rights abuse, with no countervailing public policy justification.