While millions of Americans shelter in place, one group simply cannot escape the coronavirus: prisoners. Among them are hundreds of people who have plausible claims that they are innocent, whose cases were working their way through the courts—until the coronavirus ground regular court business to a halt. What these stories reveal is the threat the virus poses to prisoners, both innocent and guilty, and to the wider population as a whole.
Walter Ogrod is one of those prisoners. February 28 brought the news that Ogrod had been waiting for ever since he was convicted of killing a 4-year-old girl and placed on death row 23 years ago: The Philadelphia District Attorney’s Office told a court that Ogrod was “likely innocent,” and that his conviction was a “gross miscarriage of justice” based on evidence that was “false, unreliable, and incomplete.” He should be released. The judge set a hearing for March 27, then rescheduled it for June. Delays happen. Most everyone believed that Ogrod would soon walk out of prison.
But on March 11, when he could almost taste his freedom, Ogrod fell ill. “He described his breathing as like breathing through sponge,” one of his attorneys, James Rollins, told me. His fever spiked to 103 degrees. He suffered bouts of coughing. These symptoms are typical of someone infected with the coronavirus. When the prosecutors and Ogrod’s attorneys learned of his illness, they quickly secured a court order instructing the prison to move him to a hospital so that he could be tested and treated for COVID-19. But the prison refused, arguing that two of its doctors said he needed no such test. “It took almost a week for him to actually get a decongestant to try to address his breathing,” Rollins said.
“We have a testing infrastructure in place and are following the COVID-19 CDC guidelines,” says Maria Finn, a spokeswoman for the Pennsylvania Department of Corrections. “We are confident that any inmate who meets the criteria will be tested.”
Patricia Cummings, who heads the Conviction Integrity Unit in the Philadelphia DA’s Office, is skeptical. “It’s your worst nightmare,” she says. Convicting an innocent man is tragic enough. Much worse would be if, after the state admits the mistake, the inmate were to die while the judicial system ambled to a conclusion. But the current situation is worse yet: Nothing was done to treat this potentially contagious prisoner, even though signs abounded that a viral “bomb” was about to explode, Cummings says. “It seemed like such a conscious indifference to not only Walter Ogrod’s well-being, but everybody in that prison.”
The prison’s decision to forego testing was either lucky or correct. Ogrod has returned to his cell and is recovering. But to Cummings, an equally frightening nightmare could now be unfolding. “How many people did he infect, if in fact he [did] have COVID-19?” she asks. “And are we going to have a widespread pandemic in the prison system?”
Across the country, innocence lawyers are filing emergency petitions to get their clients released from prison before the virus can kill them. In the space of 24 hours, I heard from attorneys representing some two dozen clients in much the same legal position as Ogrod: A trial judge or appellate court had found credible proof of their innocence, their convictions were overturned, and the state was told to release them or give them a new trial. But now they are trapped in prison as their hearings are delayed, prosecutors appeal to higher courts, reviews are stalled, or the decisions sit on the desks of judges who could make the final determination. Attorneys say that hundreds more wrongly convicted people have cases lingering in various stages of litigation; those hearings will go to the back of the line, behind new criminal cases, once courts reopen.
The coronavirus reveals characteristics of the judicial system that will prove lethal. The virus is lightning fast, while the judicial system is glacially slow. The virus is nimble and opportunistic; the system is ponderous, inflexible in its rules, slow to reverse its mistakes, and quick to attach large punishments to small crimes. Experts say that America will now see the price of mass incarceration, and that it will be catastrophically high, both for people in prisons and for the communities around them.
“Prisons are almost perfectly designed to promote the transmission of communicable disease,” says Homer Venters, the former chief medical officer at New York City’s Rikers Island. Forget about social distancing: Prisoners eat together, use the same showers, work or watch television side by side, and often sleep in the same dorm room with dozens of other inmates. Forget about hygiene: Prisons are “incredibly filthy, unsanitary places,” Venters says, where there’s often no soap, much less the freedom for hand-washing. But what makes prisoners especially vulnerable to this virus is the years of medical neglect. That’s particularly true of those claiming their innocence, who generally spend 10, 20, 30, or 40 years behind bars before they’re vindicated. But Josiah “Jody” Rich, a professor of medicine and epidemiology at Brown University, told me that the same applies to most inmates.
“When we look at the health profile of people who have been incarcerated, they would appear to be about 10 years older than their chronological age,” he said. “Somebody who’s been in and out of prisons and jails their whole life—at age 50 they have the heart disease, the lung disease, the morbidity of somebody on the outside who’s age 60.” Rich, who has been seeing patients in Rhode Island state prisons for more than 25 years, noted that half of all prisoners have a chronic medical condition. And the prison population is getting old: Inmates over the age of 55 make up the fastest growing demographic. Think nursing home, not fight club.
Donald Lucas, for example, was recently granted a new trial, two decades after he was convicted of sexual assault and attempted murder in Chicago. At 60, he has significant medical issues, including asthma, which has required several hospitalizations, and a severe seizure disorder. While he waits for a new trial, he is incarcerated at Cook County Jail, where more than two dozen detainees and staff have tested positive for COVID-19. The 73-year-old Jimmy Ates has seen his murder conviction overturned twice because the state failed to provide crucial evidence. Prosecutors in Florida will try him a third time. But his attorneys worry that he might not survive until then, as he has heart and respiratory conditions, as well as Type 2 diabetes—all of which make him vulnerable to COVID-19.
For these prisoners, justice delayed could be a death sentence. At 37, Rosa Jimenez sits in a Texas prison as her Stage 4 kidney disease progresses. Fifteen years ago, she was convicted of murder in the death of a 21-month-old who choked on a wad of paper towels while she was babysitting him. Since 2011, four different judges have concluded that Jimenez did not receive a fair trial and is probably innocent; most recently, a federal-district-court judge tossed out the murder conviction. The judge gave prosecutors until February 25 to release her or give her a new trial. State prosecutors appealed, and the district attorney in Austin, Margaret Moore, said she would review the case.
But now the pandemic has arrived and the court and the prosecutor’s office have closed their doors. “That has in effect halted” the review, says Jimenez’s attorney, Vanessa Potkin, who is also director of post-conviction litigation at the Innocence Project. She is being left “in limbo and in a place where she sits in a dorm with 33 other women. And as she said, if one woman in the dorm gets a cold, they all get a cold. It’s just a matter of time before COVID-19 enters the prison.” When it does, Jimenez has a good chance of dying, according to a kidney specialist Potkin consulted. In a letter, the specialist noted that patients with Stage 4 kidney disease “are 60 percent more likely” to contract viral illnesses and pneumonia. They will likely be “similarly susceptible to COVID-19 and carry a risk of greater complications, including death.”
Defense attorneys say there are plenty of ways the state can release prisoners and still keep them close until prosecutors decide to retry them or not. For example, the court could set restrictions, such as home confinement or electronic monitoring, which is more likely to move them out of the pathogen’s way. “Before, it was about whether the accused would have their liberty back during this time period,” Potkin says. “Now it’s about their life.”
There are within the bounds of law so many and varied ways to slow down the release of an inmate believed to be wrongly convicted. A prosecutor can oppose and then appeal every defeat—in state trial court, appellate court, and the state’s highest court. If a federal district court orders relief, she can shift the appeal to the federal appeals court, and ultimately to the U.S. Supreme Court. The state can also delay administratively, by, say, promising to launch an independent review, as in Jimenez’s case. Or a judge can simply neglect to rule on an innocence claim. All these approaches can take years, which may be infuriating in normal times but which is terrifying in the age of COVID-19.
Christopher Smith should have been released from prison, or granted a new trial, months ago. In 2008, Smith was convicted of armed robbery in Cincinnati and sentenced to 18 years in prison. It took 12 years, exhausting all his options in state court, before a federal appeals court recognized the weakness of the state’s case. The perpetrator had worn a costume—a wig, sunglasses, and a mask—which was later found in a truck owned by Smith’s girlfriend. The lab performed a DNA analysis, but the full results were withheld from Smith’s defense lawyer. Only after Smith was convicted did his attorney obtain the full report. It showed that the DNA of another man was on every article, and that Smith’s DNA was absent. In June, the Sixth Circuit Court of Appeals overturned the conviction: “In a case with stronger evidence, the suppressed evidence might not be enough to create a reasonable probability of a different outcome,” the judges ruled in a unanimous decision. “But, here, it is sufficient to undermine confidence in the outcome of the trial.”
The sixth circuit found in favor of Smith on a constitutional violation and sent it back to the lower court to finish final details. All that is left be to done is for Federal District Court Judge Timothy Black to approve the decision, which he’s had on his desk since November 7. Once that happens, Smith “will be presumed innocent,” says Michele Berry Godsey, Smith’s lawyer. “The state can choose to retry him, but he’s situated back to the very, very initial point where he’s presumed innocent.”
Yet for whatever reason—a backlogged docket, the holidays, objections from the prosecutor—Judge Black has not acted, and four months later, Smith faces a new, deadly threat. “It’s kind of mind-boggling to think that after your innocence is acknowledged, you’re a sitting duck for a virus,” Berry Godsey says. Black’s court has shut down, making an emergency hearing impossible. Nearly two weeks ago, Berry Godsey requested a phone call with the judge and prosecutor to resolve the case. The prosecutor, William Lamb, objected. “It’s not clear … what the urgencies may be,” he wrote in a letter to the judge, adding: “Smith will likely be treated better in his current setting in prison if medical exigencies arise than if he were released.”
“I have been dreaming of dying here lately,” Smith wrote to me in an email. “I feel like im being held captive. Or being held for ransom.” He has no soap or hand sanitizer, and the prison is not conducting daily checkups. “Everyone wants to be tough but you can see the fear and concern. once 1 person get this virus, we are in great trouble.”
It’s tempting to think that what happens in prison stays in prison. But a virus doesn’t respect boundaries. It sneaks in with the guards and staff: Each day, three shifts a day, hundreds of potentially infected people walk into a prison and handle the inmates, shackle them, transport them, give them food and medicine. Once the virus gets inside prison doors, “it will go through the prison like a hot knife through butter,” said Rich, the Brown professor. Soon enough, transmission will run in the other direction. As prisoners are infected, they will infect the otherwise healthy staff, who return to their families.
“Right now, we are on the cusp of really understanding how devastating the process has been,” says Venters, the former chief medical officer at Rikers Island. “Ignoring people behind bars, pretending like their health doesn’t matter, is now going to cause very serious consequences for them, and for the rest of us. Because it’s not just that we’re going to have preventable deaths in these places. It’s that it will drive this whole epidemic curve up when we’re trying to flatten it.” In other words, prisons are hot spots that America ignores at its peril.
It gets worse: Prisoners are likely to affect if not overwhelm the hospital system on the outside. After two or three weeks, Rich said, critically ill prisoners will start arriving at hospitals, many of them rural hospitals with few ICU beds and ventilators. “And you get to the point where there’s no more beds, and somebody [from the community] gets into a bad car accident, or they have COVID-19, or they have a heart attack, or they have some life-threatening illness,” Rich said. “They cannot get into the ICU bed, because that prisoner is there.” The doctor faces a Hobson’s choice of whom to save.
Multiply that by thousands of prisoners who are sure to become sick. “The epidemic is going to be already straining existing health-care systems,” Rich said. “They don’t need an influx of people coming from their local prisons.” Adds Potkin at the Innocence Project: “It’s unimaginable what’s about to happen.”
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